Citation Nr: 1803983 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-37 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to an initial compensable rating for posttraumatic stress disorder (PTSD) prior to September 30, 2011, and to a rating in excess of 30 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1950 to April 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in December 2017. A transcript of that hearing has been associated with the claims file. In an August 2012 rating decision, the RO increased the Veteran's PTSD rating from noncompensable to 30 percent effective September 30, 2011. Thus, the Board has recharacterized the issue on appeal to reflect this partial grant of benefits. A review of the record reveals that the Veteran's representative raised the matter of entitlement to a TDIU due to the Veteran's service-connected PTSD. Therefore, although the Agency of Original Jurisdiction (AOJ) did not certify the issue of entitlement to a TDIU as part of the Veteran's appeal, the Board has jurisdiction to consider the issue in its adjudication of the Veteran's underlying PTSD claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 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. The Veteran's PTSD is at worst, manifested by occupational and social impairment with reduced reliability and productivity. 2. The preponderance of the evidence of record does not reflect that the Veteran is unemployable solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but not higher, for the Veteran's service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130 Diagnostic Code 9411 (2017). 2. The criteria for referral to the Director of Compensation and Pension for consideration of entitlement to TDIU on an extraschedular basis have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.340, 3.341, 4.16 (2017); Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Fanning v. Brown, 4 Vet. App. 225 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist At the Veteran's December 2017 Board hearing, the Veteran's representative generally asserted that the Veteran's March 2012 and June 2016 VA examinations should have reflected more severe symptoms. In support of this assertion, the representative indicated that the March 2012 and June 2016 VA examinations discussed the Veteran's appearance. No additional arguments or assertions were raised with regard to the Veteran's VA examination reports. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Entitlement to an Increased Rating for PTSD Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection in date. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. §5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2016). Accordingly, after careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See id. Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding" is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Additionally, consistent with the benefit-of-the-doubt principle, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Moreover, 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) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). As stated above, prior to September 30, 2011, the Veteran's PTSD was assigned a noncompensable rating and is currently evaluated as 30 percent disabling for the remainder of the appeal period to the present. PTSD is rated under Diagnostic Code 9411 pursuant to the rating criteria of 38 C.F.R. § 4.130 (2017), which contains criteria for a noncompensable rating as well as compensable ratings of 10 percent, 30 percent, 50 percent, 70 percent, and 100 percent. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130. A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Id. A 30 percent evaluation requires 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 maintaining normal conversation, due to such symptoms as: (1) depressed mood; (2) anxiety; (3) suspiciousness; (4) panic attacks that occur either weekly or less often; (5) chronic sleep impairment; and (6) mild memory loss manifested by forgetting details such as names, directions, and recent events. A 50 percent evaluation requires occupational and social impairment "with reduced reliability and productivity due to such symptoms as": (1) flattened affect; (2) circumstantial, circumlocutory, or stereotyped speech; (3) panic attacks more than once a week; (4) difficulty in understanding complex commands; (5) impairment of short-and long-term memory as demonstrated by retention of only highly learned material or forgetting to complete tasks; (6) impaired judgment; (7) impaired abstract thinking; (8) disturbances of motivation and mood; and (9), difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is evidence of occupational and social impairment, "with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as": (1) suicidal ideation; (2) obsessional rituals which interfere with routine activities; (3) speech intermittently illogical, obscure, or irrelevant; (4) near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; (5) impaired impulse control, such as unprovoked irritability with periods of violence; (6) spatial disorientation; (7) neglect of personal appearance and hygiene; (8) difficulty in adapting to stressful circumstances, including work or a work like setting; (9) and inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is warranted when there is evidence of total occupational and social impairment "due to such symptoms as": (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate behavior; (4) persistent danger of hurting self or others; (5) intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; (6) disorientation as to time or place; and (7) memory loss for names of close relatives, own occupation, or own name. Id. The above listed symptoms associated with the noncompensable, 10, 30, 50, 70, and 100 percent ratings do not represent an exhaustive list of symptoms the Veteran must have or must exhibit; rather they are examples of symptoms that could cause the level of occupational and social impairment contemplated by each rating level. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). As such, the Board need not find all or even some of the listed symptoms to assign any of the above ratings. Id. Instead, the Board must examine the symptoms of the Veteran, determine whether they are of the kind that are enumerated in the disability rating level, and if so, determine whether those symptoms result in the level of occupational and social impairment described by that rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In doing so the Board may examine the severity, frequency, and duration of the Veteran's symptoms, and determine the similarity they bear to the specific rating levels listed in 38 C.F.R. § 4.130. See id. The Board notes that the current version of 38 C.F.R. § 4.125 (2017), utilizes the Diagnostic and Statistical Manual of Mental Disorders, (5th ed. 2013) (DSM-V) to diagnose and assess mental health disorders. However, previously, including at the time the Veteran's claim was filed and VA examinations procured, VA utilized the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). Accordingly, diagnoses made in VA examinations and VA mental health treatment records often include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score consistent with the DSM-IV. A GAF rating is a scale reflecting the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental-health illness, with higher scores reflecting a greater degree of psychological, social and occupational functioning than lower scores. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). An examiner's classification of the level of psychiatric impairment through assignment of a GAF score or otherwise, must be considered, but is not in and of itself determinative of the rating level to be assigned to the mental health disorder at issue. VAOPGCPREC 10-95. Therefore, the extent that the Veteran has been assigned a GAF, the Board will consider this evidence. Addressing the most relevant evidence in this case, the Veteran provided detailed testimony at his December 2017 Board hearing with regard to the history of his PTSD symptoms. The Veteran explained when he separated from active duty service in 1954, he knew something was wrong with him and tried to seek help from VA, but that he was denied treatment. He reported that initially after service he could not find a job, but then procured a job at a steel plant. The primary and most persistent symptom reported by the Veteran was sleep impairment, including difficulty staying and falling asleep. The Veteran reported that a "company" doctor had prescribed him sleep aids, and that he later switched from these sleep aids to over the counter sleep aids because he was getting too dependent on his prescribed sleeping pills. The Veteran explained that PTSD was not a diagnosed condition when he got out of active duty service and that it was simply referred to as "shell-shock." The Veteran also described anger issues when he could not sleep, at times lashing out at his wife and children, and "run-ins" with other people. He related a history of panic attacks. The Veteran's current spouse is his second wife, as his first wife is deceased. He reported that his relationship with his spouse had improved now that he takes medications for his mood but that it used to be worse. He reported attendance at individual therapy once every three months, and occasional group therapy attendance. The Veteran intimated that his PTSD kept him from doing a good job when he was employed because he could not sleep. He stated that he feels that if he could have gotten more sleep, he would have been able to advance further. He also related that historically, he did not want to be around other people, he kept to himself at work, and that he avoided crowds. He also indicated that he presently has panic attacks, which his current employer found out about. The Veteran was working part-time but up to full-time hours as a daytime security guard with two other security guards. The Veteran indicated that he had an agreement with his employer that if he has a panic attack, or if he has any issues with his co-workers, that he can take a break to be by himself. He identified the frequency of the panic attacks as at least every month and had been worsening since 2012. The Veteran also explained that he had a high-paying nighttime shift but that he was taken off the late shift due to his sleep issues. He reported that his condition had generally worsened over the course of the appeal period. He also noted that he had been advised to avoid funerals by his psychiatrist and therapist. The Veteran also endorsed past memory issues, and present issues focusing or not mentally grasping things the way he should, disturbances of mood and motivation, panic attacks of increasing severity, and sometimes being unable to get out of bed and get going. However, the Veteran reported that he must stay active, and he cannot just sit around at home with his PTSD symptoms. He reported sometimes working full-time hours as a security guard when they are short on help. The Veteran also reported an increase in medication over the course of the appeal period due to worsening symptoms when he filed his formal appeal. Over the course of the appeal period the Veteran was provided VA examinations in April 2011, March 2012, and June 2016. At the April 2011 VA examination the Veteran reported working in construction during his active duty service and witnessing the aftermath of combat including numerous American and enemy casualties. The Veteran reported that post-military he received his General Equivalency Diploma (GED) and graduated from technical school. The Veteran reported that he currently had a "real fine" relationship with his wife and that he played golf as a pastime. The Veteran reported part-time work as a security guard since retiring from the steel plant in 1994. He denied any history of suicide attempts or violence. The April 2011 examiner noted that the Veteran appears clean, his speech was clear, and his attitude was cooperative, friendly, and relaxed with a normal affect and good mood. The Veteran was oriented to time, place and person and his thought content was unremarkable. The Veteran did not report or present with delusions and his judgment and insight were intact. He reported severe sleep impairment of only 4 hours of sleep per night, with substantial interference in daytime activities. Panic attacks were noted to be absent as was obsessive or ritualistic behavior. Memory and activities of daily living were not impaired. The examiner noted that the Veteran had recurrent and intrusive distressing recollections of his in-service trauma, along with recurrent distressing dreams. The Veteran also presented with thought avoidance, effects to avoid activities or people that arouse recollections of the trauma, and markedly diminished interest or participation in significant activities. The Veteran was noted to have difficulty falling or staying asleep as well as hyperarousal. The examiner characterized the Veteran's symptoms as mild and reported that continuous medication was not required; at the time of the VA examination, the Veteran was only taking specific medication for insomnia, according to VA treatment records. The examiner assigned the Veteran a GAF of 70. The March 2012 VA examiner found that the Veteran's symptoms were mild and controlled by medication. The examiner assigned the Veteran a GAF of 63. At this examination, the Veteran reported that he lived with his wife of 17 years and reported that he had a good relationship with his wife that had improved since he started receiving mental health treatment. The Veteran also reported that his first marriage lasted 38 years until his wife passed away, and that he had four adult children and eight grandchildren. He reported that anger problems had caused some stress in his relationship with his children but that this had improved since taking medication and receiving mental health treatment. The Veteran reported that he liked to stay busy and that he attended church, plays golf, and worked out three days a week. He also watched television, and enjoyed watching sports and the news. He reported working the evening shift around 24 hours a week and working for his current employer since 2007. He described his work performance as "doing fine." The examiner commented that the Veteran had been receiving mental health treatment since August 2011. The Veteran reported drinking alcohol heavily until 15 years ago because it was the only way he could sleep, but stated that he now only drank the occasional beer. The examiner noted that the Veteran exhibited the following symptoms: (1) recurrent distressing dreams; (2) recurrent distressing recollections of the trauma; (3) physiological reactivity to exposure to internal or external cues; (4) thought avoidance; (4) avoidance of people and activities; (5) feelings of detachment or estrangement from others; (6) difficulty falling or staying asleep; (7) irritability or outbursts of anger; (8) difficulty concentrating; (9) hypervigilance; (10) depressed mood; (11) anxiety; (12) suspiciousness; (13) and chronic sleep impairment. The Veteran reported that with regard to his mood, he had good days and bad days, and that he felt depressed and got angry easily at times. He reported avoiding funerals for non-immediate family members, difficulty trusting people, avoiding crowds, and feeling as if he always had to look over his shoulder. He did not report panic attacks at that time, but did report difficulty initiating sleep even with sleep aids, such as Ambien. He reported feeling of stress, and being jittery and nervous. He reported his distressing dreams occurring about three times a week, as well as waking up in a sweat. Memory testing revealed good immediate memory recall but delayed recall with a cue. The Veteran reported that his memory was not as sharp as it used to be. Finally, the June 2016 VA examiner opined that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported that his relationship with his wife and adult children was generally good but that at times he required isolation and disappointed family members. He reported working part-time in security three days a week, playing golf, and that he had friends. The examiner observed that the Veteran attended psychiatric and counseling services through VA, and indicated that his medications helped him sleep, however he maintained complaints of continued anxiety and nightmares. The examiner noted that the Veteran was currently prescribed Zolpidem and Sertraline, the dose of which was recently increased. Additional symptoms noted by the June 2016 VA examiner that were not previously noted by the March 2012 VA examiner include the following: (1) markedly diminished interest or participation in significant activities; (2) persistent and distorted cognitions about the cause or consequences of the traumatic event that lead the individual to blame himself or others; (3) exaggerated startle response; and (4) panic attacks more than once a week. The examiner observed that the Veteran was neatly groomed and dressed, alert and oriented, and that he addressed questions in a logical and goal-directed manner. The Veteran denied suicidal or homicidal ideation, intent, or plan, and also denied psychosis. The Veteran's September 2011 VA treatment records reflect that he was additionally diagnosed with mild depression and anxiety along with PTSD. The Veteran was assigned a GAF of 63. The Veteran was noted to exhibit a mildly dysphoric and anxious mood while discussing his wartime experiences. The Veteran denied previous history of mental health treatment and noted that he had been diagnosed with PTSD by a VA examiner in April 2011. He reported feelings of nervousness since separating from active duty service, as well as frequent nightmares and night sweats, with severe sleep impairment. He also reported irritability and difficulty managing his temper, as well as feeling jittery during his waking hours. He stated that these symptoms had recently become more noticeable and bothersome to him. He was observed to appropriately groomed and dressed, as well as polite and cooperative. The Veteran indicated that he retired from his job as a steel mill worker in 1994 and that he had worked as a security guard for 32 hours a week in the preceding four years. The treating psychologist specifically noted the following PTSD symptoms: (1) recurrent nightmares of trauma; (2) intrusive thoughts or images of the trauma; (3) flashbacks; (4) psychological distress; (5) physiological reactivity when reminded of trauma; (6) thought avoidance; (7) diminished interest and participation in activities; (8) restricted affect; (9) difficulty falling or staying asleep; (10) irritability; (11) hypervigilance; and (12) exaggerated startle response. Panic attacks were not specifically noted at that time. June 2012 VA treatment record indicates that the Veteran was prescribed 10 mg. of Zolpidem and 50 mg. of Sertraline daily. The Veteran reported that he was not waking up as much at night but that he still had nightmares. He expressed worry for his grandkids. September 2011 psychiatry records indicate that the Veteran was prescribed 10 mg. of Zolpidem and 25 mg. of sertraline to be then increased to 50 mg. 2011 and 2012 records note hypervigilance, nightmares, nighttime sweating, crowd avoidance, difficulty sleeping, and worry. Mild cognitive impairment was also observed. The Veteran's GAF scores ranged from 60 to 63 throughout the Veteran's VA mental health treatment records. October 2015 VA treatment records document a report of a usual panic attack occurrence rate of once every three months, with periods of increased panic attacks during times of stress. The Veteran reported that his panic attacks were occurring more frequently at that time due to his grandson's recent criminal prosecution and conviction for a serious crime. In a July 2015 VA treatment record, the Veteran generally reported increased panic attack symptoms when he was experiencing stressors in his life. He reported that the attacks occur spontaneously, without warning, and that they last for approximately 30 minutes. The Veteran's sertraline prescription was increased to 100 mg. in March 2014, and his sleep medication prescription was changed to Ambien but remained at 10 mg. The Veteran's sertraline was increased following his report of an anxiety attack that was accompanied by nervousness and a feeling of imbalance. The Veteran reported a recent history of the panic attacks occurring once per month, and prior to starting sertraline the panic attacks occurring at least three times per month. The Veteran reported that he had stopped attending church due to the noise and crowds, and reported that his wife sometimes pushed his buttons. He reported an intensification of nightmares triggered by the death of people close to him. Addressing the appeal period both prior to and after September 30, 2011, based on the evidence of the Veteran's panic attacks prior to commencing sertraline in September 2011, and the episodic increase in panic attacks in response to significant life stressors, along with the duration of the Veteran's panic attacks, the Veteran's workplace accommodations, and the episodic increases in severity in sleep impairment and nightmares, and disturbances of motivation and mood, the Board finds that the Veteran's symptoms are at worst, manifested by occupational and social impairment with reduced reliability and productivity and that the 50 percent rating criteria have been met. In so finding, the Board has considered the next highest rating of 70 percent, but finds that there is significant evidence that the Veteran's PTSD does not manifest in occupational and social impairment with impairments in most areas, as demonstrated by the Veteran's stable work history both prior to and during retirement, and stable marital and family relationships. Moreover, the Veteran's VA examinations, VA treatment records, and lay statements do not demonstrate deficiencies in other areas such as judgment or thinking, and there is no indication of symptoms comparable to suicidal ideation, illogical speech, near-continuous panic or depression, impaired impulse control, neglect of personal appearance or hygiene, or the inability to establish and maintain effective relationships. To the contrary, the Veteran has persistently denied outbursts of violence, suicidal ideation, and no impairment in thought process, judgment, impulse control, or insight has ever been noted. Accordingly, an award of entitlement to a rating of 50 percent but not higher for service-connected PTSD is warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130 Diagnostic Code 9411 (2017). III. Entitlement to a Total Disability Rating Based on Individual Unemployability (TDIU) At the Veteran's December 2017 Board hearing, his representative raised the issue of entitlement to a TDIU due to the Veteran's PTSD symptoms on account of the Veteran's part-time employment status. No additional arguments were made. A TDIU may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). However, the Veteran's service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, the Veteran's service-connected disabilities do not meet the schedular criteria. However, notwithstanding the above listed schedular criteria, a Veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable on account of his service connected disabilities. Such a TDIU claim may be submitted to the Director of the Compensation Service. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Additionally, the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). As the Veteran's PTSD is not currently rated at 60 percent or more and the Veteran is not service-connected for any other disability, the only basis on which the Veteran could obtain a TDIU is extraschedular. The remaining question is whether his service-connected disabilities preclude him from engaging in substantially gainful employment. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." Id. Notably, this inquiry must focus on whether, in light of his service-connected disorders, the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may not be given to the veteran's age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). Factors to be considered in determining whether unemployability exists are the veteran's education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). The only basis on which the Veteran's representative has asserted entitlement to a TDIU is due to the part-time nature of the Veteran's current job working security. However, there is no evidence lay or otherwise that the Veteran's part-time employment is less than substantially gainful, and there is no evidence lay or otherwise that his PTSD renders him incapable of performing the physical and mental acts required by employment. Although the Veteran is prevented from working night-time shifts and requires some workplace accommodations for his PTSD symptoms, there is no evidence that the Veteran cannot find employment due to his PTSD. In this regard, the Veteran affirmatively reported that he retired from his extended employment as a steel mill worker and that keeping busy is beneficial to his PTSD; moreover, his has post-military vocational training and worked in construction during service. At no point has the Veteran indicated that his retirement in 1994 was predicated on his PTSD; rather he only provided testimony that he felt he did not advance as much as he could have over the course of his career. As such, in the absence of additional evidence, the fact that the Veteran works part-time to full-time in a post-retirement occupation does not constitute evidence of unemployability. Accordingly, referral of the Veteran's claim to the Director of Compensation and Pension is not warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.340, 3.341, 4.16 (2017); Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Fanning v. Brown, 4 Vet. App. 225 (1993). ORDER Entitlement to a rating of 50 percent, but not higher for service-connected PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a TDIU is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs