Citation Nr: 1751824 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-00 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) and a traumatic brain injury (TBI). 3. Entitlement to an initial rating in excess of 10 percent for residuals of a TBI. 4. Entitlement to a rating in excess of 10 percent for ischemic heart disease, coronary artery disease, and status-post myocardial infarction associated with herbicide exposure. 5. Entitlement to a compensable disability rating for recurrent right ear perforated tympanic membrane and recurrent otitis media and externa. 6. Entitlement to a rating in excess of 50 percent for PTSD. 7. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from November 1967 through June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2010, May 2012, December 2016 and June 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Testimony was received from the Veteran and his spouse during a July 2014 Board hearing. A transcript of that testimony is associated with the claims file. In July 2015, the Board remanded the issues of entitlement to a compensable disability rating for recurrent right ear perforated tympanic membrane and recurrent otitis media and externa, entitlement to a rating in excess of 50 percent for PTSD and entitlement to a TDIU for additional development. Notably, in a February 2017 rating decision, the RO assigned a temporary total disability rating for the Veteran's ischemic heart disease due to hospitalization of a service-connected disability effective December 8, 2016 and assigned a 10 percent rating effective April 1, 2017. The RO also granted special monthly compensation (SMC) based on housebound criteria for the period from December 8, 2016 to April 1, 2017. The Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. Here, however, the Veteran has been awarded SMC for the period from December 8, 2016 to April 1, 2017. Hence, the concerns addressed in Bradley are not present currently as the Veteran has already been awarded SMC for this period. As such, only the issue of entitlement to a TDIU for the periods on appeal prior to and after the award of SMC is a part of the current appeal as the period from December 8, 2016 to April 1, 2017 is not on appeal. The issues of entitlement to service connection for hypertension, entitlement to service connection for sleep apnea, entitlement to an initial rating in excess of 10 percent for residuals of a TBI and entitlement to a rating in excess of 10 percent for ischemic heart disease, coronary artery disease, and status-post myocardial infarction associated with herbicide exposure are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular rating available for recurrent right ear perforated tympanic membrane and the Veteran's chronic otitis media is manifested by intermittent episodes, with no evidence of suppuration or aural polyps. 2. The Veteran's PTSD is manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment was shown. 3. The Veteran's service-connected disabilities are not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for recurrent right ear perforated tympanic membrane and recurrent otitis media and externa have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.85, 4.87, Diagnostic Codes 6201, 6210, 6211 (2017). 2. The criteria for an evaluation in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 9411 (2017). 3. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a July 2011 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). I. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his recurrent right ear perforated tympanic membrane and recurrent otitis media and externa and PTSD disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. A. Recurrent right ear perforated tympanic membrane and recurrent otitis media and externa The Veteran filed a claim for an increased rating for his service-connected recurrent right ear perforated tympanic membrane and recurrent otitis media and externa disability which was received by VA in June 2012. The Veteran currently has a noncompensable rating for recurrent right ear perforated tympanic membrane and recurrent otitis media and externa under Diagnostic Codes 6201-6211. This hyphenated code is intended to show that the Veteran's right ear disability was rated analogously to perforation of the tympanic membrane under Diagnostic Code 6211. A noncompensable (zero) percent disability rating is the maximum rating for perforation of the tympanic membrane under Diagnostic Code 6211. 38 C.F.R. §4.87. Under Diagnostic Code 6201(chronic nonsuppurative otitis media with effusion), instructs that the disability be rated based on hearing impairment. Diagnostic Code 6200 provides that the sole rating available for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) is a 10 percent rating. Suppurative otitis media is distinguished by persistent discharge from the perforated tympanic membrane. A note states that complications, such as hearing impairment, labyrinthitis, tinnitus, facial nerve paralysis and bone loss of the skull, are to be evaluated separately. Id. Diagnostic Code 6210 provides that chronic otitis externa warrants a 10 percent rating with swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. Factual Background and Analysis The Veteran underwent a VA examination in February 2013. The examiner noted diagnoses of chronic suppurative otitis media and a perforated right tympanic membrane both of which were diagnosed in 1969. The Veteran reported that he experienced 3 to 4 middle ear infections per year in his right ear. The Veteran had a small perforation that was not visible but he could create a whistling noise when he hilded his nose and did a Valsalva maneuver. In 2004 or 2005 he had repair for his perforated right tympanic membrane. However, the surgery was unsuccessful in repairing the perforation. The examiner noted that the Veteran clinically had a perforated right tympanic membrane and experienced 3 to 4 acute right ear infections per year. During the Veteran's October 2013 DRO hearing, he asserted that he has "constant" ear infections Per the July 2015 Board remand instructions, the Veteran underwent a VA examination in March 2016. The examiner noted a recurrent perforation of the right tympanic membrane which was diagnosed in 1968. The examiner noted that the Veteran's perforated right tympanic membrane had healed but had spontaneously reperforated over the years. He had a small pinpoint hole as he could hear air blowing through his right tympanic membrane when he held his breath and blew. He had 1 to 2 ear infections per year and had no external otitis ear infections. The Veteran's treatment plan did not include taking continuous medication for the diagnosed condition. He did not have any benign neoplasm of the ear that caused impairment of function. On examination, the Veteran still had a small pinpoint hole in the right tympanic membrane but it was not visible. The examiner noted that the Veteran was retired but had worked for 32 years as a technician. He had no functional limitations due to his perforated ear drum. The Board finds that the preponderance of the evidence is against a compensable rating for the Veteran's service-connected recurrent right ear perforated tympanic membrane and recurrent otitis media and externa. As noted above, a noncompensable (zero) percent disability rating is the maximum rating for perforation of the tympanic membrane under Diagnostic Code 6211. Id. The Veteran may only receive a higher initial disability rating under a different diagnostic code for diseases of the ear. Diagnostic Code 6201(chronic nonsuppurative otitis media with effusion), instructs that the disability be rated based on hearing impairment. However, the Veteran is separately service-connected for right ear hearing loss and tinnitus. Accordingly, to award an additional rating under any of this diagnostic code would thus amount to impermissible pyramiding. See C.F.R. § 4.14 (2017) (noting that the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability). With regard to Diagnostic Code 6200 (chronic suppurative otitis media), an increased compensable rating is not warranted as there is no clinical or lay evidence of suppuration or aural polyps throughout the rating period on appeal. The medical evidence of record shows that the Veteran has residuals of a perforated right tympanic membrane. However, he did not report experiencing discharge, vertigo, or balance of gait problems and pruritus was not present. In addition, there is no evidence of otosclerosis, loss of auricle, malignant neoplasm of the ear, or benign neoplasm of the ear. Id; see also 38 C.F.R. § 4.87, Diagnostic Codes, 6202, 6205, 6207, 6208, and 6209 (2017). With respect to Diagnostic Code 6210, pertaining to chronic otitis externa, the February 2013 VA examiner indicated that the Veteran experienced 3 to 4 acute right ear infections per year while at his October 2013 DRO hearing, the Veteran asserted that he has "constant" ear infections. Additionally, the March 2016 VA examiner noted that the Veteran had 1 to 2 ear infections per year. However, the February 2013 and March 2016 VA examinations did not reveal any current infections as the March 2016 VA examiner specifically indicated that the Veteran had no external otitis ear infections. Additionally, the examiners did not indicate that the Veteran's right ear exhibited swelling or required frequent and prolonged treatment. Id., Diagnostic Code 6210 (2017). As noted above, under Diagnostic Code 6210, a compensable rating of 10 percent is warranted for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. While the Veteran is competent to report symptoms, the Board ultimately places more probative weight on the results of objective examination by competent health care providers, which failed to show that the disability was manifested to the degree necessary for a higher evaluation. For all the foregoing reasons, the Veteran's claim for entitlement to a compensable rating for service-connected recurrent right ear perforated tympanic membrane and recurrent otitis media and externa must be denied. As the preponderance of the evidence is against the claim for an increased compensable rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. PTSD The Veteran filed a claim for an increased rating for his service-connected PTSD disability which was received by VA in January 2011. The Veteran is currently assigned a 50 percent disability rating for service-connected PTSD under Diagnostic Code 9411. Under the general rating formula for mental disorders, a 50 percent rating requires 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. A 70 percent rating requires 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 affected 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. A 100 percent rating is assigned when there is 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 evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 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, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more 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 obsessional rituals, frequent shoplifting] or any serious impairment in social, occupational or school functioning [e.g., no friends, unable to keep a job]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech 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., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran's claim was certified to the Board prior to this date, the amendment is not applicable, and as such, the DSM-IV applies to the Veteran's claim, and it is appropriate to consider GAF scores as a factor in assessing the severity of his psychiatric disorder. Factual Background and Analysis The Veteran underwent a VA examination in July 2011. The examiner noted diagnoses of PTSD and depressive disorder not otherwise specified (NOS). A GAF score of 55 was assigned. The examiner determined that the Veteran's symptoms were best summarized as "occupational 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." The Veteran's depression was secondary to PTSD and the examiner indicated that differentiation between the PTSD and depression was irrelevant. The Veteran had been married to his third wife for 4 months. He reported that they got along well although he could be irritable and act out verbally when annoyed. He had 2 adult children and had 2 grandchildren. He had good relationships with the grandchildren but did not have a lot of contact with his children as he was hard on them when growing up. He reported having acquaintances but no friends he considered to be close with whom he regularly socializes. He golfed with friends once a week and also exercised at the gym. He recently worked for a CDL testing facility but he was suspended for retesting someone without waiting the requisite 7 days. He had difficulty falling or staying asleep, irritability or outbursts of anger and hypervigilance. He had depressed mood, anxiety, chronic sleep impairment and mild memory loss. He also reported fairly depressed mood. He also complained of decreased energy and motivation and spent a lot of time alone during the day. He presented as fairly intact cognitively with some report of memory difficulties that appear to be age-appropriate. There was no homicidal or suicidal ideation. He had anxiety attacks and with medication which now only occurred once per 2 to 3 months. He was competent to manage his financial affairs. The examiner indicated that the Veteran remained employable from a mental health perspective and would likely have no more than moderate impairment from mental health issues in a work-related setting. The Veteran underwent a VA examination in February 2013. The examiner noted diagnoses of PTSD and depressive disorder NOS. A GAF score of 55 was assigned. The examiner noted that the Veteran's mental health symptoms appeared to be of moderate severity and were assessed to have a corresponding moderate impact on his overall psychosocial functioning. The Veteran also had depressive disorder NOS and it was not possible to differentiate what portion of each symptom was attributable to each diagnosis. The Veteran experienced mild depressed mood, lack of interest in previously enjoyed activities and lack of motivation for social activity and relationships. The examiner determined that the Veteran's symptoms were best summarized as "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily." The Veteran remained married and had been married to his wife for 2 years. He indicated that he had a good relationship with his wife but he noted that his chronic irritability and anger caused some problems in their relationship. He had 2 adult children and 2 grandchildren and that his current relationship with his adult children is better than it has been in the past. The Veteran noted that he was quick to become angry, even over minor issues. Aside from his family relationships, he described himself as a "loner" and he indicated that he did not have any close friends. He reported having several acquaintances who he had occasionally socialized with in the past but he currently had very little social activity. He generally did not like to be around people for an extended period of time. He also had difficulty in falling or staying asleep, irritability or outbursts of anger, difficulty concentrating and hypervigilance. His symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment and mild memory loss. There were also disturbances of motivation and mood. The examiner indicated that the Veteran's mental health symptoms appeared to be of moderate severity and were assessed to have a corresponding moderate impact on his overall psychosocial functioning. Private counseling records from RCS Group Therapy show that both the Veteran and his spouse had attended separate counseling from May through June of 2014 for difficulties in coping with the Veteran's symptoms. The Veteran testified during his July 2014 Board hearing that some symptoms such as panic attacks and nightmares were occurring with greater frequency. He testified that he had ongoing difficulties at work in his current job as an employee for the Department of Motor Vehicles, and that those difficulties had led to his suspension from work. The Veteran's spouse added testimony that the Veteran appeared to be confused on a daily basis, became agitated easily, and in general was "hateful and mean." She testified that, overall, the Veteran's PTSD symptoms had worsened in severity over the previous year. Per the July 2015 Board remand instructions, the Veteran underwent a VA examination in March 2016. The examiner determined that the Veteran's symptoms were best summarized as "occupational 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." The examiner indicated that no other mental disorder besides PTSD has been diagnosed. He had been married to his third wife for 5 years. He reported that he often got irritable with his wife and felt that he stressed her out. He reported that he used to golf with his brother but stopped playing because he would get so angry that he would break golf clubs. He did not like crowds and if a restaurant was too crowded, he would leave. He would go to sporting events but had to stand behind a glass and watch rather than sit in his seat. As noted in the July 2011 VA examination, he had previously worked part time for CDL testing but was suspended for allowing someone to take retest without waiting the requisite 7 days. The Veteran had been receiving mental health treatment for several years and was continuing to receive medication management for his symptoms. He reported having nightmares a few times a week about his stressing event. The Veteran indicated that since he had been retired, his mind went to Vietnam "all of the time". He avoided most things and could not stand crowds. He also reported experiencing panic attacks which happens several times a month. He reported sleep disturbance as he slept approximately 2 hours and then was woken up due to nightmares. Notably he got arrested in 2015 for an altercation with a neighbor. The Veteran experienced depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, and impaired judgment. On examination, his appearance was causal and appropriate. He was alert and oriented in all spheres and his psychomotor activity was unremarkable. His thought process and thought content were unremarkable. He denied current suicidal or homicidal ideation. His speech was within normal limits and there were no perceptual abnormalities. His mood and affect were anxious. His insight was adequate and his judgment was episodically poor. The examiner indicated that the Veteran would likely be capable of understanding, remembering and carrying out instructions. He may experience mild difficulty responding appropriately to supervision and relating effectively to co-workers. He would likely be capable of sustaining adequate concentration. He may experience mild difficulty sustaining persistence and pace and adapting to change from a mental health perspective. After reviewing the evidence of record as a whole, the Board finds that the assignment of a disability rating greater than 50 percent for the Veteran's service-connected PTSD is not warranted. In this regard, the evidentiary record is negative for ideation with intent, speech which was intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting his ability to function independently or spatial disorientation. Moreover, the rating criteria for a 70 percent evaluation require that a claimant be unable to establish or maintain social relationships. The Veteran's social impairment during this period more closely contemplates a 50 percent evaluation as he continues to be married to his third wife and has a relationship with his adult children and grandchildren. The Veteran's thinking had also consistently been found to be intact and unimpaired and there was no evidence of delusions or impaired thought processes. There was also no evidence of paranoia or suicidal or homicidal ideation. As noted above, the Veteran's symptoms include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, and impaired judgment. However, while the Board accepts that the Veteran's symptoms had effects on his functioning, the lay and medical evidence of record does not demonstrate significant deficiencies in most areas. Indeed, at no point in this time period did the VA examiners or any other examiner or treating physician find that the Veteran's symptoms caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as is required for the assignment of a 70 percent rating; or cause total occupational and social impairment, as is required for the assignment of a 100 percent rating. In fact, the Board notes that the July 2011 and February 2013 VA examiners assigned a GAF score of 55, which indicates moderate symptoms and moderate difficulty in social, occupational, or school functioning. The Board also notes that the July 2011, February 2013 and March 2016 VA examiners all specifically described the Veteran's symptoms as occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation, which fits squarely for the criteria for a 30 percent evaluation under the General Rating Formula. Despite the fact that this description actually correspond squarely with a lesser disability rating, the Board will still assign the current 50 percent disability rating for PTSD. However, a rating in excess of 50 percent is clearly not available based on these findings. Thus, while the record demonstrates that the Veteran did have some social and occupational impairment which impacted his quality of life, the greater weight of evidence demonstrates that it is to a degree less that is contemplated by the 50 percent rating currently assigned. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the current 50 percent schedular rating. While the Veteran had some of the criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed a 50 percent rating. Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of a 50 percent rating. Accordingly, this evidence demonstrates that the Veteran did not have deficiencies in most of the areas in the criteria for a 70 percent rating nor had he been shown to have most of the symptoms listed as examples in the criteria. As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it logically follows that criteria for an even higher rating (100 percent) have not been met. There is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; intermittent inability to perform activities of daily living as a result of his psychiatric symptoms, or disorientation to time or place. As discussed, the evidence also weighs strongly against finding that his disability was manifested by total social impairment as the Veteran had been able to maintain relationships with some of his family. Thus, the Board finds that the preponderance of the evidence is against the claim as the Veteran's symptoms more closely approximated the criteria for a 50 percent disability rating, and neither a 70 or 100 percent rating. For all the foregoing reasons, the Veteran's claim for entitlement to a rating in excess of 50 percent for service-connected PTSD must be denied. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. TDIU Laws and Regulations A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2017). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Currently, aside from the period from December 8, 2016 to April 1, 2017 which as noted above is not on appeal, the Veteran is service connected for PTSD at a 50 percent disability rating, for tinnitus at a 10 percent disability rating, for a TBI at a 10 percent rating, for ischemic heart disease at a 10 percent rating, for recurrent right ear perforated tympanic membrane and recurrent otitis media and externa at a noncompensable rating, for a scar associated with ischemic heart disease at a noncompensable rating and for right ear hearing loss at a noncompensable rating . Accordingly, his combined disability rating is 60 percent which does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2017). See also Fanning v. Brown, 4 Vet. App. 225 (1993). 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. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. Factual Background and Analysis The Veteran filed a claim for entitlement to a TDIU which was received by VA in January 2011. An April 2011 VA audiology examiner determined that the Veteran's hearing loss did not impact his ability to work. A July 2011 VA mental health examiner indicated that the Veteran remained employable from a mental health perspective and would likely have no more than moderate impairment from mental health issues in a work-related setting. A November 2011 VA TBI examiner noted that the Veteran's occupation history revealed good performance for gainful employment as he had a responsible job of quality control officer. A March 2016 VA mental health examiner indicated that the Veteran would likely be capable of understanding, remembering and carrying out instructions. He may experience mild difficulty responding appropriately to supervision and relating effectively to co-workers. He would likely be capable of sustaining adequate concentration. He may experience mild difficulty sustaining persistence and pace and adapting to change from a mental health perspective. A March 2016 VA examiner on a TBI examination noted that the Veteran worked for 32 years as a technician after service and had no functional limitations. He was retired now. A March 2016 VA ear disease examiner noted that the Veteran was retired but had worked for 32 years as a technician and currently had no functional limitations due to his perforated ear drum. The examiner opined that the Veteran's ear condition did not impact his ability to work. A November 2016 VA heart examiner opined that the Veteran's heart disability did not impact his ability to work. An April 2017 TBI VA examiner noted that the Veteran reported having difficulty maintaining employment over the years due to his anger issues and verbal aggression. As noted above, the Veteran's combined disability rating of 60 percent does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. On review of the record, the Board finds that the Veteran was not unemployable by reason of his service-connected disabilities and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted. The record demonstrates that the Veteran is currently retired but was formerly employed for 32 years as a technician. It therefore appears that his prior work experience involved mostly manual labor, and not sedentary work. That alone, however, does not necessarily mean that the Veteran is not able to secure or follow a substantially gainful sedentary occupation. While the Board is sympathetic for the restrictions that encompassed his service-connected disabilities, the evidence clearly demonstrates that the Veteran's service-connected disabilities did not preclude all forms of employment. Specifically, multiple VA examiners have indicated that the Veteran's disabilities did not impact the Veteran's ability to work. Additionally, the March 2016 VA examiner for the Veteran's service-connected PTSD specifically indicated that while the Veteran may experience mild difficulty responding appropriately to supervision and relating effectively to co-workers, he would likely be capable of understanding, remembering and carrying out instructions. The statements of the Veteran as to his employability as a result of his service connected disabilities have been considered and they are found to be competent, credible and probative as to the symptoms experienced and observed. However, they are outweighed by the evidence of record. Here, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU and that referral for consideration of entitlement to TDIU on an extraschedular basis is not required. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a compensable disability rating for recurrent right ear perforated tympanic membrane and recurrent otitis media and externa is denied. Entitlement to a rating in excess of 50 percent for PTSD is denied. Entitlement to a TDIU is denied. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claims remaining on appeal. In its December 2016 rating decision, the RO granted service connection for a TBI at an initial 10 percent disability evaluation, effective June 7, 2011. In April 2017, the Veteran filed the appropriate notice of disagreement (NOD) form as to the December 2016 rating decision. Similarly, its June 2017 rating decision, the RO, in part, denied entitlement to service connection for hypertension, denied entitlement to service connection for sleep apnea, and denied entitlement to a rating in excess of 10 percent for ischemic heart disease. In July 2017, the Veteran filed the appropriate NOD form as to the June 2017 rating decision as he specifically disagreed with the denials of service connection for hypertension, service connection for sleep apnea, and a rating in excess of 10 percent for ischemic heart disease. While the Veteran expressed disagreement with the December 2016 and June 2017 rating decisions, it appears that no subsequent statements of the case were ever issued. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issues of entitlement to service connection for hypertension, entitlement to service connection for sleep apnea, entitlement to an initial rating in excess of 10 percent for residuals of a TBI, and entitlement to a rating in excess of 10 percent for ischemic heart disease, coronary artery disease, and status-post myocardial infarction associated with herbicide exposure remain pending in appellate status (see 38 C.F.R. § 3.160(c)) and require further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board's actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to service connection for hypertension, entitlement to service connection for sleep apnea, entitlement to an initial rating in excess of 10 percent for residuals of a TBI, and entitlement to a rating in excess of 10 percent for ischemic heart disease, coronary artery disease, and status-post myocardial infarction associated with herbicide exposure, including citation to all relevant law and regulation pertinent to these claims. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs