Citation Nr: 1803458 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-01 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) since July 15, 2009. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1966 to June 1968, including service in the Republic of Vietnam. His decorations include the Vietnam Service Medal with 3 Bronze Stars and Republic of Vietnam Gallantry Cross with Palm Unit Citation. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2011, the Board issued a decision denying entitlement to an initial rating in excess of 30 percent for PTSD prior to July 15, 2009 and in excess of 50 percent since July 15, 2009 as separate issues. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Order, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, the Court vacated and remanded the portion of the decision denying an initial rating in excess of 50 percent for PTSD since July 15, 2009. In September 2012, the Board issued a decision denying a rating in excess of 50 percent for PTSD since July 15, 2009. In a July 2013 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the decision to the Board. In May 2014, July 2015 and June 2017, the Board remanded the claims for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Since July 15, 2009, the Veteran's PTSD has been manifested by symptoms reflective of no more than occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities do not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD for the period since July 9, 2009, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Schedular Rating The Veteran's PTSD is currently rated 50 percent disabling since July 15, 2009. He asserts that throughout the appeal period his PTSD has been more severe than the currently assigned rating and that he is entitled to an increased rating. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for symptoms manifested by 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. A 70 percent rating is assigned when the psychiatric condition produces 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. Finally, a 100 percent rating is warranted when there is total occupational or 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. After a review of the medical and lay evidence, the Board finds that the criteria for a higher rating for PTSD are not met. The evidence shows that since July 15, 2009, the Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, irritability, memory impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran's symptoms do not more nearly approximate a rating in excess of 50 percent under the General Rating Formula as they are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In this regard, there is no evidence of: suicidal ideation; speech intermittently illogical, obscure, or irrelevant; near-continuous panic attacks or depression affecting the ability to function independently; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). On the contrary, VA examination reports and treatment notes show normal speech and communication skills; cooperative behavior; absence of violence; and thought content free of obsessive thoughts. The Veteran's hygiene was appropriate and within normal limits. He maintained good eye contact, and he was oriented times three. As to social impairment, the Veteran reported feelings of social detachment and estrangement. He has indicated that he has difficulty around other people, avoids crows, and isolates himself. However, he has been married to his wife since 1962 and described his marriage as "I guess good." See June 2016 VA examination report. Furthermore, he expressed that he has "good" family relationships, although he admitted that family members have informed him of his frequent irritability. See April 2010 VA examination. He has denied having any friends, preferring the company of his family. He attends church, gardens, performs chores, helps care for his granddaughter, and visits his sister. As such, the Board finds that the Veteran has demonstrated an ability to maintain social relationships, despite some social impairments. Thus, the Veteran does not suffer from an inability to establish and maintain effective relationships. With respect to difficulty in adapting to stressful circumstances (including work or a work-like setting), the June 2016 VA examiner found no such impairment, and the April 2010 examination report indicates that the Veteran retired from his last job in 2004 because he was eligible to do so by age or duration of work. This is discussed in more detail below in connection with the claim for entitlement to a TDIU. Although anxiety has been noted to impact his recreational activities, ability to do chores, and his ability to shop due to his anxiety in crowds and irritability around people, this is reflective of occupational and social impairment with reduced reliability and productivity. Indeed, the Veteran indicated that he attends church, spends his time going for walks, mowing the lawn, and gardening. With respect to obsessional rituals, the April 2010 examiner explicitly noted that the Veteran did not exhibit inappropriate behavior. Although the examiner indicated that the Veteran exhibited obsessive or ritualistic behavior in the form of compulsive checking of locks, the examiner explained that this behavior merely caused the Veteran aggravation. Since the April 2010 examination, he has not reported that he has continued to compulsively check his door locks. Significantly, his compulsive lock checking was not determined to be so severe that it interfered with routine activities. With respect to near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, the April 2010 examiner indicated that the Veteran experienced moderate panic attacks one to two times per week. These panic attacks were noted to last approximately 5 minutes at a time and caused the Veteran to feel anxious. In a May 2012 VA treatment record, he reported being sad at times, cries easily, and becomes nervous and shaky. In February 2014, he reported minimal depression and anxiety. Further, the June 2016 examiner noted transient periods of depressed mood. There is no indication in the record of an inability to function independently, appropriately and effectively. Thus, while the Veteran has experienced panic attacks, depression, and anxiety, his symptoms are contemplated by the 50 percent rating and are not so severe so as to affect his ability to function independently, appropriately and effectively, nor could they be considered "near-continuous" in nature. As to impaired impulse control, the Veteran has consistently reported irritability. However, the evidence shows no history of violence or inappropriate behavior. Further, VA treatment records note good impulse control, judgment, and insight. Thus, while the Veteran struggles with irritability, the Board finds his symptoms do no correlate with impaired impulse control sufficient to warrant a higher evaluation. The April 2012 Joint Motion focused on the April 2010 examiner's opinion that the Veteran's PTSD signs and symptoms resulted in deficiencies in the areas of judgment, thinking, family relations, work, and mood. However, a closer inspection of the examiner's opinion shows that, despite the use of this phrase, the examiner did not endorse that the Veteran exhibited symptoms contemplated by the 70 percent evaluation criteria, nor did he exhibit symptoms of a similar frequency, severity, or duration to those contemplated by the 70 percent evaluation. For instance, with respect to deficiencies in judgment, the April 2010 examiner stated that although the Veteran had angry outbursts at work several years ago, there was no current impairment in judgment. With respect to deficiencies in thinking, the April 2010 examiner stated that the Veteran suffered from reminders of the traumatic event with various emotional triggers, nightmares, hypervigilance, and decreased concentration. The Board emphasizes that these comparatively mild symptoms are not contemplated by the criteria for a 70 percent evaluation, nor are they of the same severity as symptoms such as suicidal ideation, illogical speech, or near-continuous panic. With respect to deficiencies in family relations, the April 2010 examiner stated that the Veteran's family life was affected by his irritability and isolation. However, as discussed above, the Veteran has described "good" family relationships with his spouse of 50 years and their family, and clearly does not suffer from an inability to establish and maintain effective relationships, as contemplated by the criteria for a 70 percent evaluation. With respect to deficiencies in work, the April 2010 examiner stated that the Veteran had not worked since retiring in 2004 due to eligibility by age or duration of work. With respect to deficiencies in mood, the examiner explained that the Veteran suffered from an anxious and irritable mood. However, these symptoms more closely approximate the criteria contemplated by the criteria for a 30 percent evaluation, not the next-higher evaluation of 70 percent. Moreover, the April 2010 examiner assigned the Veteran a Global Assessment of Functioning (GAF) score of 60, indicative of merely 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). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Significantly, the examiner chose not to assign the Veteran a GAF score of 50 or lower, which would encompass the 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) contemplated by the criteria for a 70 percent evaluation. For the reasons set forth above, the Board concludes that the psychiatric symptomatology since July 15, 2009, does not demonstrate that the Veteran's PTSD more closely approximates the criteria for a 70 percent evaluation under Diagnostic Code 9411. Despite the April 2010 examiner's opinion that the Veteran's PTSD signs and symptoms resulted in deficiencies in the areas of judgment, thinking, family relations, work, and mood, an in-depth look at the evidence in the very same examination report reveals that the deficiencies noted by the examiner do not meet the criteria for a 70 percent evaluation. In other words, the determination of the proper rating for the Veteran's PTSD does not turn simply on an examiner's overall conclusion, but also turns on the evidence underlying that conclusion and the other evidence in the record. In this case, the symptoms associated with the PTSD are more consistent in nature, frequency and severity with those contemplated by a 50 percent rating. The examiner's ultimate conclusion itself is undermined both by the mental status examination findings and by the GAF score assigned. Her overall conclusion is inconsistent with the actual findings and reported symptoms. Further, she noted moderate impairment related to the Veteran's PTSD. As the symptoms and GAF score are clearly consistent more with the criteria for a 50 percent rating, the Board finds that they are more probative than the conclusion on which the Joint Motion focuses. Moreover, the Veteran's GAF scores throughout this appeal period have reflected transient to moderate symptoms, ranging from 55 to 75. These scores are in keeping with his moderate symptoms (e.g., constricted affect), moderate difficulty in social, functioning (e.g., few friends), and some mild symptoms and impairment (e.g., depressed mood but some meaningful interpersonal relationships). He has not been assigned any GAF scores below 55 that would indicate more serious symptoms. The Board has also considered the Veteran's statements that his PTSD is worse than currently evaluated. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, the Veteran is not competent to identify a specific level of disability of his PTSD according to the appropriate diagnostic codes. The medical findings address the criteria under which the disability is evaluated. The Board finds the medical findings to be of greater probative value than the Veteran's self-assessment. Thus, the Board finds that the Veteran's PTSD symptoms have been manifested by no more than occupational and social impairment with reduced reliability and productivity and are characteristic of a 50 percent disability rating for the entire appeal period. The evidence of record does not support a finding that the Veteran has exhibited the level of cognitive, occupational and social impairment in most areas. As such, the preponderance of the evidence shows that the Veteran's psychiatric symptomatology does not more closely approximate the criteria for a 70 percent disability rating under the general rating schedule for psychiatric disorders. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, the Board emphasizes that the parties to the JMR identified no other deficiencies in the Board's analysis as to why 70 and 100 percent ratings were not warranted. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court had any additional concerns regarding the Board's findings in terms of entitlement to 70 or 100 percent ratings, such concerns would have surfaced in the JMR or the Court Order so that any deficiencies could be corrected. Finally, to the extent that the Veteran's representative generally asserts that he preserves for appeal "all legal errors, errors in fact-finding, failure to follow Manual M21-1 . . . failure to discharge the duty to assist, and other due process errors," such vague assertions do not amount to a specific procedural argument in this case and thus need not be addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board). TDIU The Veteran asserts that he is entitled to TDIU benefits. Based on the evidence of record, the Board finds that entitlement to a TDIU based on his service-connected disabilities is not warranted. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Even when the percentage requirements under 38 C.F.R. § 4.16(a) are not satisfied, a total disability evaluation may still be assigned on an extraschedular basis. Indeed, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, exceptional cases may be submitted to the Director of Compensation and Pension Service for extraschedular consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). The Veteran's service-connected disabilities consist of PTSD rated as 50 percent disabling, diabetes mellitus, type II rated as 20 percent disabling, tinnitus rated as 10 percent disabling, and bilateral hearing loss rated as noncompensable, for a combined rating of 60 percent. Thus, the Veteran has not met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). Therefore, the Board will consider whether referral for an extraschedular TDIU rating is warranted. The Veteran asserts that he is entitled to a TDIU based on his service-connected PTSD. The evidence shows that he has four years of high school education and last worked part-time as a security guard from 2010 to 2012 or 2013. Prior to that he worked part-time as a sales clerk and truck loader from 2007 to 2008 or 2009. His last full time work was in 2000 as a production manager. See January 2015, June 2017, and July 2017 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. There is no suggestion either by lay or medical evidence, that the Veteran's service-connected diabetes, tinnitus, or bilateral hearing loss precludes substantially gainful employment. The October 2017 VA examiner opined that the Veteran's service-connected bilateral hearing loss and tinnitus do not impact his ability to work. Similarly, an August 2017 VA examiner determined that his service-connected diabetes does not impact his ability to work. The Board acknowledges that Social Security records reveal that he was deemed to be disabled due to disorders of the back and osteoarthritis and allied disorder in June 2002, for which he is not service connected. The Board notes that consideration may not be given to the impairment caused by nonservice-connected disabilities when determining whether an individual veteran is entitled to a TDIU. See 38 C.F.R. § 3.341, 4.16, 4.19. The Veteran reported to a July 2007 VA PTSD examiner that he worked at a youth correctional facility from 1987 to 1997. He then worked at a metal fabrication plant for a friend until 2003 or 2004 when he retired due to back problems. He reported that at work he could be verbally harsh and loud towards others, but reported no significant problems related to this. The July 2007 VA examiner noted that the Veteran's PTSD symptoms were not severe enough to interfere with occupational functioning. The December 2008 VA PTSD examiner noted that the Veteran was fired from his most recent full-time job in 2004 because of an angry outburst at a staff meeting. Further, that same examiner noted that the Veteran was "currently working at a part-time job and he reported that he experiences problems at work due to his angry outbursts and poor concentration." The examiner noted that the Veteran told the previous July 2007 examiner that he retired from that job due to non-psychiatric medical reasons. The December 2008 examiner noted moderate occupational impairment due to decreased concentration, difficulty following instructions, inappropriate behavior, memory loss, and poor social interaction. While the examiner noted intermittent periods of inability to perform occupation tasks, there was generally satisfactory functioning with regard to routine behavior, self-care, and normal conversation. The Veteran reported to the April 2010 VA PTSD examiner that he retired in 2004 due to age eligibility or duration of work. However, he reported irritability at work, difficulty getting along with coworkers, and having angry outbursts at work, which he said contributed to his retirement. The examiner noted moderate impairment related to his PTSD. The Veteran also noted difficulty maintaining employment in a July 2009 therapy session. The Veteran's former employer, H.C.M., indicated in a May 2010 letter that the Veteran was terminated from his part-time employment due to the effects of his PTSD symptomatology, in that "his PTSD symptoms prohib[]ited him from doing his duties to his fullest capabilities." The employer noted that the Veteran evidenced severe memory problems, would isolate himself from other employees and customers, making customer interaction nearly impossible, and sometimes had arguments or disagreements with customers. The June 2016 VA PTSD examiner opined that the Veteran has "occupational and social impairment with reduced reliability and productivity," and determined that if his "employment consists of minimal interactions with customers, his PTSD symptoms would have a minimal impact on his ability to perform his work duties." Further, the examiner stated that the Veteran "demonstrates a strong work ethic given his current behavioral activation and approximately 55 years of consistent work history which is free of any disciplinary problems." In addition, the examiner noted that the Veteran denied any verbal or physically aggressive behaviors. In June 2017, the Board remanded for an addendum opinion to address the December 2008 VA examiner's notation that the Veteran was fired from his most recent full-time job in 2004 because of an angry outburst at a staff meeting and the May 2010 former employer letter. In an August 2017 addendum opinion, the examiner noted that the Veteran denied any occupational history of disciplinary problems from his former employers during the June 2016 examination. He further highlighted the discrepancies of the Veteran's self-report of employment history amongst VA examination providers, which was also noted by the December 2008 examiner. Additionally, he noted that the May 2010 employer letter does not indicate that the Veteran was terminated from his employment or that his behavior resulted in disciplinary problems. Further, the examiner noted that the former employer, as a layperson, is not competent to opine that the Veteran's "PTSD symptoms prohibited" him from engaging in his employment responsibilities. The examiner attributed the Veteran's outbursts to his personality problems, as opposed to PTSD, but gave the benefit of the doubt that the Veteran's mild PTSD resulted in occupational and social impairment with reduced reliability and productivity. There is no other competent evidence of record that contradicts the August 2017 VA examiner's determinations, which are predicated on a clinical examination of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Board emphasizes that the Veteran has presented conflicting information regarding his work history over the course of the appeal, and his statements in this regard therefore lack credibility. In this regard, he has reported that he retired due to back problems in 2004 (July 2007 VA examination report), fired due to an angry outburst in 2004 (December 2008 VA examination report), retired in 2004 due to age (April 2010 VA examination report), and most recently he denied any occupational history of disciplinary problems (June 2016 VA examination report). Further, in his January 2015, June 2017, and July 2017 VA Form 21-8940, he failed to identify any employment between his production manager job that ended in 2000 and his work as a sales clerk/truck loader in 2007, indicating additional work history discrepancies. While the Veteran's representative asserts that the June 2016 and August 2017 VA examiner has minimized the Veteran's temper outbursts, poor concentration, and short-term memory loss, the Board finds that the examiner has adequately considered these impairments and equates these symptoms to occupational impairment with reduced reliability and productivity. See November 2017 Appellant's Post-Remand Brief. Thus, the Board finds that considerable industrial impairment due to the Veteran's PTSD is already contemplated in the 50 percent rating currently assigned. 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Here, there is no indication in the competent and credible evidence of record that the Veteran is incapable of performing the physical and mental acts required by employment due to his PTSD. Given the Veteran's above-described credibility issues, his opinion in this regard is of no probative value. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria, including 38 C.F.R. § 4.16(b) referral, for TDIU have not been met. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a rating in excess of 50 percent for PTSD since July 15, 2009 is denied. Entitlement to a TDIU is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs