Citation Nr: 1756980 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-09 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for depressive disorder, not otherwise specified. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1989 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded this case in January 2017 to obtain records, a VA examination, and readjudication. The Board finds the RO substantially complied with the directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the RO sent multiple letters to obtain the Veteran's work history. Despite the attempts, the Veteran did not cooperate because he did not return the completed document detailing his work history. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). In its remand the Board also requested that the Veteran be afforded examinations to ascertain the current severity of his service-connected disabilities. He underwent a VA examination for his psychiatric disorder in June 2017. He was not provided with a VA examination for his remaining service-connected disabilities: low back (thoracolumbar) strain, and peripheral neuropathy of both lower extremities due to back strain, and a cyst on the left side of the low back. However, the evidence does not show, nor does the Veteran contend, that these disabilities have increased in severity since that time. The Board recognizes this deviation from the remand directives, but finds that it is not such that a remand is required for correction. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). FINDINGS OF FACT 1. The Veteran's unspecified depressive disorder more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The ratings assigned for the Veteran's service-connected disabilities do not meet the percentage requirements of 38 C.F.R. § 4.16(a) for an award of TDIU and the evidence does not show that his service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for depressive disorder, not otherwise specified have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was satisfied by a February 2010 letter. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any additional records that should be obtained prior to a Board decision. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran was provided two VA examinations in March 2010 and June 2017. The examinations are adequate for the purposes of the instant claim, as they involved a physical examination of the Veteran and a review of the claims file, and provide discussions of pertinent symptomatology, functional impact, and sufficient rationales for all diagnoses and opinions expressed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, 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. §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. 38 C.F.R. §4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that he is entitled to an initial rating in excess of 30 percent for his depressive disorder. The Veteran's depressive disorder is rated under Diagnostic Code 9434. 38 C.F.R. § 4.130. Diagnostic Codes 9434 utilizes the General Rating Formula for Mental Disorders. Under that formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as : depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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); and the inability to establish and maintain effective relationships. 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9434. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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). VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. As this case was initially certified to the Board in May 2016, the DSM-5 is applicable in this case. The Veteran's psychiatric symptomatology has remained the same from September 2009 to June 2017. In VA and private examinations and treatment records, the Veteran has consistently reported a decrease in his mood as he experiences an increase in pain. He notes experiencing chronic pain on a daily basis and feeling depressed and anxious. The Veteran feels fearful of the future and being worthless to others at times. He notes sometimes getting frustrated and having difficulty getting motivated. The Veteran reports becoming overwhelmed by all the things he has on his list to do. He further notes having a chronic sleep impairment. The Veteran states he gets down/sad on a daily basis and that every day is a struggle for him. Regarding occupational impairment, the March 2010 VA examination noted that the Veteran was, and continued to be, employed with the United States Postal Service (USPS) for the past 15 years as a mail handler. The examiner noted that the Veteran reported missing work due to back and leg pain and experiencing some limitations on how much he can lift or how long he can stand when working due to his physical impairments. The examiner also noted the Veteran reported getting along with some co-workers, but tends to avoid others, because they sometimes get on his nerves and irritate him. The Veteran reported not having any official disciplinary infractions or write-ups at work. The examiner did not find the Veteran to have an impairment of thought process or communication, nor did the examiner find evidence of delusions or hallucinations. The examiner found the Veteran to make no reports of panic attacks, difficulty understanding complex commands, judgement, or thinking. Finally, the examiner opined that the Veteran is not unemployable due to his mental health problems. In the June 2017 VA examination, the examiner noted that the Veteran has continued his full-time employment with the USPS. The examiner also noted that the Veteran reported missing work due to pain and avoiding working overtime due to back pain; however, the Veteran also reported that the USPS accommodates his physical health issues by limiting his lifting. The examiner noted that the Veteran appears to be maintaining his work. The examiner did not find the Veteran to have an impairment of thought process or communication, nor did the examiner find evidence of delusions or hallucinations. Finally, the examiner opined that the Veteran's service-connected depressive condition does not appear to be significantly limiting his employment and his mental health symptoms are not of a severity that would prohibit gainful employment. With respect to social impairment, the March 2010 VA examination noted the Veteran had been married for 20 years and felt his wife is supportive. The Veteran reported he and his wife get along adequately without excessive arguing. The examiner noted that the Veteran and his wife spend time together and acquired a dog. The Veteran reported that in times of increased stress, he will withdraw to his office for a period of time. The examiner noted the Veteran has a 20-year-old son who lives in his basement apartment at the Veteran's home. The examiner also noted that the Veteran's son helps with tasks around the house. The examiner noted that the Veteran's parents live nearby and he gets along well with them. The examiner also noted that the Veteran gets along with his siblings and brother-in-law, but has limited contact due to their busy lives. The examiner noted that the Veteran spends a lot of time at home watching TV, reading, playing with his dog, and being on the internet. The Veteran also reported attending church about twice a month. The Veteran denied having felt actively suicidal and denied being homicidal. The Veteran denied any significant memory impairment. In the June 2017 VA examination, the Veteran reported being married for 28 years with no significant marital problems. The examiner noted that the Veteran reported having a good relationship with his son, who lives a mile away and helps him with tasks that he cannot complete. The Veteran reported good contact with his parents and having a good friend approximately 30 miles away who he calls and visits. The examiner noted the Veteran regularly attends church, uses his computer, watches TV with his wife, talks with his brother in Oklahoma, and sits with his dog outside. The examiner also noted that the Veteran tends to avoid crowds. The examiner noted that the Veteran's memory appeared grossly intact, but he reported at times being distracted, distressed, and forgetful of where he places things due to his pain. The Veteran denied having suicidal or homicidal ideation. The examiner noted the Veteran was recently diagnosed with sleep apnea and started on a continuous positive airway pressure (CPAP) machine. Finally, the examiner noted that the Veteran reported that despite his depression, anxious symptoms, and physical limitations, he tries to maintain a positive attitude and takes the day hour by hour. The Veteran further reported that he tries to focus on the positive, has a strong faith, often compares himself to those that are less fortunate, and has a general positive life satisfaction while being hopeful about the future. The examiner concluded that the Veteran's psychiatric symptoms cause occupational and social impairment with 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 evidence most favorable to the Veteran are three opinion letters from a private provider. The Veteran had three evaluations from the same private provider. In a September 2009 evaluation, the private provider found the Veteran to have a depressive disorder. The provider found the symptoms of the Veteran's depressive disorder to cause clinically significant impairment in his social, occupational, and personal functioning. The provider noted that the Veteran's depressed mood and lethargy interfere with his ability to be consistently productive at any job; his concentration and memory problems prevent him from learning new tasks; and his irritability and feelings of isolation severely limit his ability to initiate or sustain social relationships. Ultimately, the provider found the Veteran to be permanently and totally disabled and unemployable. The second evaluation occurred in January 2010. In the January 2010 evaluation, the provider noted the Veteran missed three days of work due to back and leg pain. The provider detailed the Veteran's reports of pain and working at a high stress job with the USPS. The provider noted the Veteran's reports of mood swings and feelings of irritability as pain increases. Again, the provider concluded with a finding that the Veteran is considered to be totally and permanently disabled. The third evaluation occurred in December 2016. In the December 2016 evaluation, the provider noted the Veteran continues to experience significant disturbances in all areas of his life due to his depressive symptoms and chronic pain. The provider noted the Veteran's reports of an increase in pain and how working on concrete floors increases his pain. Again, the provider concluded with a finding that the Veteran is considered to be totally and permanently disabled. Both VA examiners addressed the private evaluation reports and noted that the evaluation reports lacked supporting data and supporting conclusions as to how the functional evaluations were made. The VA examiners agree with the private provider's symptomatology findings and diagnosis; however, they do not agree with the private provider's conclusion that the Veteran's depressive disorder renders him totally and permanently disabled. Both VA examiners determined the private evaluations lacked credibility. The October 2010 examiner found that the private provider's conclusion was "rather extreme... especially given the fact that the Veteran continues to be employed." The June 2017 VA examiner noted that the private psychologist did not specify whether the Veteran's unemployable is due to physical problems or depression. The examiner explained that the private provider's "...assessments and opinions tend to be overly exaggerated and not likely a valid assessment of [the Veteran's] conditions." In his Notice of Disagreement, the Veteran argued that the RO placed inappropriate probative weight on the VA examinations over the opinions from the private examiner. The Board finds the VA examinations and medical center treatment records more probative than the private examinations. The private examinations did not include a review of the claims file, nor did they provide sufficient rationales for the opinions expressed. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 304 (2008). The private examiner found the Veteran to be totally and permanently disabled and unemployable without discussing the Veteran's active career with the USPS. Further, the private examiner's reports make conclusory statements without rationales or support for the opinions expressed. The Veteran also asserts that VA cannot disregard the opinion of a treating psychologist. The Board has not disgorged the opinions, and instead has assigned them less probative weight. There is no "treating physician rule" under VA law, whereby additional evidentiary weight is presumptively afforded to the opinion of a physician who treats the veteran. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Veteran argues that the GAF score of 38 assigned by his private provider is evidence that a higher rating is warranted. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. However, with the adoption of the DSM-5, the American Psychiatric Association has determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45,093 (Aug. 4, 2014). The Veteran's private provider assigned a GAF score of 38. GAF scores ranging between 31 and 40 are assigned when there is 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). The October 2010 VA examiner disagreed with the GAF score and explained, "[t]he report diagnosed him with mood disorder with depressive features due to his service connected medical problems and gave a very low Global Assessment of Functioning score of only 38 and made a rather extreme conclusion that she felt he was 'permanently and totally disabled and unemployable.'" The examiner stressed that the Veteran continued to be employed and the private provider did not discuss the Veteran's career. The Board finds the GAF score is not probative evidence in support of the Veteran's claim. Thus, the most probative medical evidence, combined with the Veteran's subjective reports of his symptoms, indicated that his depressive disorder was productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: depressed mood, anxiety, and chronic sleep impairment, isolative behavior, concentration problems, and difficulty in establishing relationships. The Board finds the Veteran's symptoms of his depressive disorder warrant no more than the currently assigned 30 percent disability evaluation. 38 C.F.R. § 4.130, DC 9434. The most probative evidence of record shows that the Veteran's depressive disorder results in occupational and social impairment with reduced reliability and productivity. Specifically, the Veteran appeared to have family relationships and a friendship that sustained him and that he maintained very well and has maintained full-time employment as a mail handler for the USPS for over 22 years. The Veteran does not have suicidal or homicidal thoughts, nor does he have concentration problems or difficulty following instructions. The evidence indicates that the Veteran's disability more closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Therefore, the Veteran's depressive disorder warrants no more than a 30 percent rating. 38 C.F.R. § 4.130, DC 9434. The Board has also considered the Veteran's statements regarding the severity of his depressive disorder. The Veteran contends that his depressive disorder is far more disabling than the ratings he was assigned, and in fact, the Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). His reports are also credible. Ultimately, however, the opinions and observations of the Veteran do not show that his psychiatric symptoms are of the frequency, severity, or duration needed to result in occupational and social impairment with reduced reliability and productivity. The evidence does not show that symptomatology associated with the Veteran's depressive disorder more nearly approximates the schedular criteria associated with a higher rating other than those herein assigned, at any time relevant to the appeal period. Therefore, the Veteran's depressive disorder warrants no more than the currently assigned 30 percent rating. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of a rating in excess of 30 percent for the Veteran's service-connected depressive disorder. 38 C.F.R. §§ 4.3, 4.7. II. TDIU The Veteran seeks entitlement to TDIU due to his service-connected disabilities. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The phrase "substantially gainful employment" is defined 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 a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded. 38 C.F.R. § 4.16(a). Age may not be considered as a factor in evaluating unemployability. 38 C.F.R. §§ 3.341, 4.19. The Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue must be addressed. 38 C.F.R. § 4.16. In order to prevail on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). The Veteran is service-connected for the following disabilities: depressive disorder associated with low back strain at 30 percent; low back strain at 20 percent; mild demyelinating peripheral neuropathy, left lower extremity associated with low back strain at 10 percent; mild demyelinating peripheral neuropathy, right lower extremity associated with low back strain at 10 percent; and cyst/lipoma, left side of low back at zero percent. His combined evaluation for compensation has been zero percent from April 17, 1993, 10 percent from April 14, 2000, 20 percent from September 27, 2000, 30 percent from April 24, 2001, 40 percent from July 25, 2001, and is currently 60 percent from February 9, 2010. Accordingly, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. At present, a remand for referral for extraschedular consideration is not necessary, because the Veteran's service-connected disabilities do not preclude him from securing substantially gainful employment. Since 1994, the Veteran has been a full-time employee of the USPS. According to the Veteran, he has not had any official disciplinary infractions at work. He does report missing work, but the record reflects he misses work for his service-connected low back strain. The Veteran reports that his employer accommodates his service-connected low back strain. There is no evidence that suggests that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Significantly, the Veteran has been gainfully employed for the appeal period, and was noted to be so at his most recent VA examination in June 2017. The fact that he has been gainfully employed throughout the appeal period is highly probative evidence against a TDIU. Therefore, entitlement to a TDIU due to service-connected disabilities is not warranted on a schedular basis and remand for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU is not warranted. ORDER Entitlement to an initial rating in excess of 30 percent for depressive disorder, not otherwise specified is denied. Entitlement to a TDIU is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs