Citation Nr: 1754423 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-07 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for major depressive disorder (MDD) prior to October 29, 2012, and in excess of 50 percent thereafter. 2. Entitlement to a total disability rating based upon individual unemployablity (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from November 1976 to May 1984, from August 2005 to February 2007, and from April 2008 to May 2009. These matters come to the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the pendency of the appeal, in an August 2013 rating decision, the RO granted an increased 50 percent disability rating for MDD, effective October 29, 2012; however, as this does not represent a full grant of benefits sought on appeal, the matter remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, although the Veteran did not appeal an October 2014 rating decision that denied her claim of entitlement to a TDIU rating, her TDIU claim remains part and parcel of her increased rating claim before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has characterized the claims on appeal accordingly. FINDINGS OF FACT 1. Prior to October 29, 2012, the Veteran's MDD was manifested by ongoing depression which resulted in no worse than 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, or symptoms controlled by continuous medication. 2. From October 29, 2012, the Veteran's MDD was manifested by ongoing depression, which resulted in no worse than occupational and social impairment with reduced reliability and productivity. 3. The Veteran has not been precluded from securing or following a substantially gainful occupation due to her service-connected disabilities for any period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for major depressive disorder (MDD) prior to October 29, 2012, and in excess of 50 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9434 (2017). 2. The criteria for a TDIU rating have not been met for any period on appeal. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist with respect to the issues adjudicated herein. 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). II. Initial Rating - MDD 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. 38 C.F.R. Part 4 (2017). 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. § 1155 (2012); 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). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2017). When evaluating the level of disability from a mental disorder, VA also 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(b). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran's initial rating claim, the Board has considered the claim from the assigned initial effective date of June 1, 2009, which the Veteran has not appealed, as well the appropriateness of the assigned staged rating periods. The Veteran's service-connected MDD (previously rated as adjustment disorder and claimed as PTSD) is currently rated as 10 percent disabling from June 1, 2009 and as 50 percent disabling from October 29, 2012, under Diagnostic Code (DC) 9434 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9434 (2017). Under the applicable rating criteria, a 10 percent disability rating is warranted where there is 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, or symptoms controlled by continuous medication. Id. A 30 percent disability rating is warranted where there is 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent disability rating is warranted when there is 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 disability rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. Id. Finally, a maximum schedular 100 percent disability rating is warranted 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, 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 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 61 to 70 reflects 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. Scores ranging from 51 to 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). However, the rating schedule does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. Following her release from active duty, VA treatment records from November 2009 document an initial visit wherein the Veteran reported mood swings, trouble sleeping, and depression; the provider noted that depression and posttraumatic stress disorder (PTSD) screens were positive. In December 2009, the Veteran was assessed with depression and assigned a current GAF score of 60. Upon mental status examination in January 2010, the Veteran appeared alert and oriented, with normal speech, thought process, and thought content. She denied suicidal or homicidal ideation, assessed with depression, and assigned a current GAF score of 60. In February 2010, the Veteran submitted a statement regarding her ongoing depression since discharge from active service. In July 2010, the Veteran and her daughter each submitted statements that reported that her symptoms included anxiety, depression, anger, irritability, and social isolation. Upon VA examination in November 2010, the Veteran reported positive relationships with family members and others. She noted that she enjoyed hobbies and that she had been employed by an acute-care center as a registered nurse for approximately six years, but she reported ongoing struggles at work culminating in a September 2010 disciplinary action due to a dispute regarding a promotion she was not awarded as a result of her prior deployment. Upon mental status examination, she appeared alert and oriented, with normal psychomotor activity, thought process and content, speech, and memory. Additionally, her affect, mood, judgment, and insight were all normal, without any hallucinations, delusions, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or homicidal/suicidal ideation. She was able to maintain minimum personal hygiene, with no problems with activities of daily living. The examiner diagnosed adjustment disorder with a current GAF score of 68 which resulted in psychiatric signs and symptoms which were transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Upon follow up in January 2011, the Veteran reported a good relationship with her husband of 26 years and close relationships which her two children; however, she reported a limited support system outside of her family. She remained employed as hospital nurse but also sought alternative employment. The therapist assessed that her depression resulted in a current GAF score of 55. The following month, the Veteran appeared normal upon mental status examination, with ongoing depression and a current GAF score of 55. In July 2011, her GAF score had improved to 65. Thereafter, the Veteran's psychiatric condition remained largely stable, as noted upon follow up in June 2012, with a normal mental status examination and a current GAF score of 65. Upon VA examination in February 2013, the examiner diagnosed MDD with a current GAF score of 65 which resulted in 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, due to psychiatric symptoms of depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon subsequent VA examination in October 2014, the Veteran reported a good relationship with her husband of 30 years and her two daughters, and hobbies of working around the house and shopping. She stated that she was laid off in September 2013 and decided to retire at that time; she asserted that she would have a difficult time in her career as a nurse due to back and knee problems. She reported ongoing psychiatric symptoms including occasional depression and disturbances of motivation and mood, but also noted that she could usually avoid such feelings. The examiner noted that April 2014 treatment records documented that the Veteran's depression was mild and that things were falling into place for her since her retirement from nursing. As such, the examiner concluded that the Veteran's symptoms of depression are not such that they would interfere with her ability to maintain gainful employment. The examiner concluded that the Veteran's MDD resulted in 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. Following a review of the evidence of record, including as discussed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for major depressive disorder (MDD) prior to October 29, 2012, and in excess of 50 percent thereafter. In order to warrant an initial disability rating in excess of 10 percent prior to October 29, 2012, the Veteran's service-connected MDD would need to result in at least 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). See 38 C.F.R. § 4.130, DC 9434. Notably, however, upon VA examination in November 2010, the Veteran's condition was found to result in no worse than transient or mild symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. VA treatment records prior to October 29, 2012 document that the Veteran received ongoing mental health therapy and that her condition remained largely stable throughout the rating period, which is further probative evidence that weighs against her claim. To the extent that the Veteran received decreased GAF scores of 55 in January 2011 and February, the Board affords less probative value to these scores, which appear to be isolated in light of the Veteran's additional GAF scores during the rating period. For example, although the Veteran reported some depression regarding her work conditions at the time of the decreased GAF scores, she concurrently reported good ongoing relationships with her family; moreover, her GAF score had improved to 65 by July 2011, and her condition was noted to be stable. As such, to the extent that it could be argued that the Veteran experienced moderate difficulty in social or occupational functioning given the two recorded GAF scores of 55 in January and February 2011, the Board finds it probative that she maintained ongoing relationships with family and while she reported work conflict, this appears to be related to a promotion that she did not receive, rather than a result of her psychiatric symptomatology. Moreover, it is significant that the Veteran's additional GAF scores during the rating period fell within the range of scores from 61 to 70, which reflects some mild symptoms, but generally functioning pretty well, with some meaningful interpersonal relationships. See Carpenter, 8 Vet. App. at 242-44. As such, the Board finds that the Veteran's GAF scores during the rating period prior to October 29, 2012 are most nearly approximated by the Veteran's currently assigned 10 percent disability rating prior to October 29, 2012. As the Veteran's psychiatric symptoms prior to October 29, 2012 do not meet the rating criteria for an increased 30 percent disability rating, it follows that her symptoms also do not meet the more severe rating criteria for an increased 50, 70, or 100 percent disability rating during the rating period. Significantly, she has not shown the required severity of occupational and social impairment necessary for increased disability ratings during the rating period prior to October 29, 2012, and her symptoms as a whole are not of similar severity, frequency, and duration as those particular symptoms associated with a 50, 70, or 100 percent disability rating. Vazquez-Claudio, supra. Similarly, in order to warrant an increased 70 percent disability rating from October 29, 2012, the Veteran's MDD would need to result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, DC 9434. However, upon VA examination in February 2013, her assigned GAF score remained 65, which reflects no worse than mild symptoms. See Carpenter, supra. Additionally, the examiner concluded that her psychiatric symptoms resulted in no worse than 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. Similarly, the subsequent October 2014 VA examination resulted in the conclusion that her MDD resulted in 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. Both examiners checked the criteria that falls under the 30 percent rating, which is evidence that does not support a rating higher than 50 percent. To the extent that the lay evidence of record asserts entitlement to increased disability ratings both prior to and from October 29, 2012, the Board has considered such lay statements insofar as they are probative and related to observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that such statements conflict with the additional evidence of record, including the objective VA treatment records and examinations discussed above, the Board affords them lesser probative value regarding the assessment of the overall resulting occupational and social impairment related to the Veteran's service-connected psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Caluza v. Brown, 7 Vet. App. 498 (1995). As the Veteran's MDD symptoms do not meet the rating criteria for a higher 70 percent disability rating from October 29, 2012, it follows that her symptoms also do not meet the more severe rating criteria for an increased 100 percent disability rating during the rating period. Significantly, she has not shown the required severity of occupational and social impairment necessary for an increased 70 or 100 percent disability rating during the rating period, and her symptoms as a whole are not of similar severity, frequency, and duration as those particular symptoms associated with a 70 or 100 percent disability rating. Vazquez-Claudio, supra. Thus, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for MDD prior to October 29, 2012, and in excess of 50 percent thereafter. See 38 C.F.R. § 4.130, DC 9411. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. TDIU A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2017). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead 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. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2017); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran is currently service-connected for MDD (rated as 10 percent disabling prior to October 29, 2012 and 50 percent disabling thereafter), bilateral plantar fascitis (rated as 10 percent disabling from June 1, 2009, 20 percent disabling from August 29, 2011, and noncompensable from November 1, 2015), left sciatica radiculopathy (rated as 20 percent disabling from August 29, 2011), bilateral foot degenerative joint disease (DJD) (rated as 10 percent disabling from June 1, 2009), tinnitus (rated as 10 percent disabling from June 1, 2009), right knee DJD (rated as 10 percent disabling from June 1, 2009, 30 percent disabling from August 29, 2011, and 10 percent disabling from November 1, 2015), thoracolumbar spine degenerative nucleus pulposus (rated as 10 percent disabling from June 1, 2009, 20 percent disabling from August 29, 2011, and as 10 percent disabling from November 1, 2015), and bilateral hearing loss and acute colitis (each rated as noncompensable from June 1, 2009). Based upon the above, the Veteran's combined disability rating is 50 percent from June 1, 2009, 80 percent from August 29, 2011, 90 percent from October 29, 2012, and 80 percent from November 1, 2015. As such, the Veteran meets the schedular criteria for a TDIU rating from August 29, 2011. See 38 C.F.R. § 4.16(a). Additionally, the failure to meet the schedular percentage requirements prior to August 29, 2011 does not preclude the availability of a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b); however, as discussed below, the Board finds that the probative evidence of record does not document that the Veteran was precluded from securing or following a substantially gainful occupation due to her service-connected disabilities for any period on appeal, and thus, referral for consideration of an extraschedular TDIU rating prior to August 29, 2011 and a TDIU rating therefrom is not warranted. Within her initial October 2012 TDIU application, the Veteran reported that her service-connected depression, right knee, and back disabilities prevented her from working. She reported that she last worked in September 2013 as a registered nurse and noted that she had and educational history including four years of college, without additional education or training. Within a subsequent January 2014 TDIU Application, the Veteran added that her plantar fasciitis disability also contributed to her unemployability, in addition to her previous report. She stated that she was laid off in September 2013 after being given the option of an alternate work arrangement, but stated that she was unable to accept these due to her disabilities. Specifically, she reported that she was unable to concentrate or assist patients due to pain and that her depression and anxiety resulted in irritability and anger toward coworkers. The Board has also considered a January 2014 Social Security Administration (SSA) determination which found the Veteran to be disabled from September 9, 2013 due to primary affective/mood disorders and secondary disorders of the back (discogenic and degenerative). Significantly, however, SSA decisions are relevant, but not controlling for VA determinations. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Moreover, the Board notes that the SSA finding of disability is of limited probative value, as the SSA case analysis is itself internally inconsistent. For example, these records document severe back and psychiatric impairments, but goes on to document a finding that the Veteran's conditions resulted in no more than moderate impairment for activities of daily living and moderate limitations in the workplace. To the extent that the SSA vocational explanation found that the Veteran had acquired skills from her past work activity, but that such skills were not transferable due to her advancing age and restrictions to a light level of physical exertion and short, simple instructions, the Board affords more probative value to the other evidence of record. In particular, an October 2014 VA examiner concluded that the Veteran's symptoms of depression would not interfere with her ability to maintain gainful employment. Also, age is not to be considered when determining whether service-connected disabilities prevent a claimaint from obtaining and retaining gainful employment. Additionally, while the Veteran reported in December 2014 that her back, right knee, sciatica, and bilateral plantar fasciitis conditions had worsened and prevented her from working, the Board finds it more probative that concurrent VA rating actions indicate that her relevant disabilities had improved. Indeed, an October 2014 rating decision proposed to reduce her disability ratings for her back, right knee, and bilateral plantar fasciitis; these reductions were subsequently implemented within an August 2015 rating decision, effective November 1, 2015. Given the above, the Board concludes that the preponderance of evidence weighs against the Veteran's TDIU claim for the entire period on appeal. Referral for consideration of a TDIU rating on an extraschedular basis is not warranted for the period prior to August 29, 2011, and TDIU is not warranted as of that date, and as such, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49. ORDER An initial disability rating in excess of 10 percent for MDD prior to October 29, 2012, and in excess of 50 percent thereafter, is denied. Entitlement to a TDIU rating is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs