Citation Nr: 18144754
Decision Date: 10/25/18	Archive Date: 10/25/18

DOCKET NO. 14-38 851A
DATE:	October 25, 2018
ORDER
1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with dysthymic disorder and recurrent major depression is denied.
2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.
FINDINGS OF FACT
1. For the entire period on appeal, the Veteran’s PTSD has not been manifested by occupational and social impairment with reduced reliability and productivity.
2. The Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating in excess of 30 percent for PTSD with dysthymic disorder and recurrent major depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.126, 4.130, Diagnostic Code (DC) 9411.
2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from April 1969 to October 1970.
1. Entitlement to an initial rating in excess of 30 percent for PTSD with dysthymic disorder and recurrent major depression.
The Veteran’s service-connected PTSD with dysthymic disorder and recurrent major depression is currently evaluated as 30 percent disabling, under DC 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130.
In the September 2011 rating decision on appeal, the Veteran was granted service connection for PTSD with dysthymic disorder and recurrent major depression (herein psychiatric disability), and assigned a 30 percent evaluation effective August 23, 2010.
Under the applicable rating criteria, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to 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 disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id.
Finally, a 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.
When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. 
The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 30 percent for a psychiatric disability. The reasons follow.
In a May 2011 VA examination, the examiner opined that the Veteran had reduced reliability and productivity based upon his endorsed symptoms of having physical reactions, being irritable, difficulty concentrating, being on guard, being jumpy, or being easily startled, and feeling cut off or distant from other people. Although the examiner indicated that the Veteran had reduced reliability and productivity, the examiner did not indicate that the Veteran manifested any of the symptoms noted in the schedular criteria that would demonstrate that the Veteran’s symptoms rose to the level of severity of reduced reliability and productivity. 
In a February 2012 VA examination report, the examiner checked a box that said that the Veteran’s psychiatric disability was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Although the examiner checked this box, he noted that the Veteran exhibited only symptoms of a depressed mood, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner did not describe symptoms that would establish his disability picture fell under the criteria of a 50 percent rating or higher. 
The Board notes that it is the fact finder in determining what evaluation is warranted for the Veteran and not the medical professional. Additionally, when the examiner is asked, “Which of the following best summarizes the Veteran’s level of occupational and social impairment with regard[] to all mental diagnoses,” the description provided is “Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.” In other words, the examiner is not provided the examples of symptoms that demonstrate such a level of severity. And, again, it is the Board and not the medical professional that determines whether a higher rating is warranted. The February 2012 examiner checked five symptoms that the Veteran had at the time of the examination, and only one of them fell under the 50 percent criteria (difficulty in establishing and maintaining effective work and social relationships). The severity of the Veteran’s symptoms do not rise to the level of occupational and social impairment with reduced reliability and productivity.
VA examinations from May 2014 and December 2, 2015 indicated that the Veteran’s psychiatric disability was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Symptoms during these examinations variably included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The symptoms documented in these examination reports do not more closely approximate the level of severity of symptoms that fall under the 50 percent criteria. 
In a VA examination from December 14, 2015 for PTSD, the examiner indicated that the Veteran’s disability was manifested by occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence. The examiner observed that the Veteran was alert, attentive, cooperative, reserved, and appropriate, with a moderately anxious affect, somewhat slowed but articulate mentation, and a mildly dysphoric mood. The examiner noted that the Veteran’s cognitive processing functioning was reduced. To the extent that some of the symptoms from this examination report are included in the individual rating criteria for a 50 percent rating, the Board finds that the December 14, 2015 VA examination does not support that the Veteran’s disability has resulted in overall impairment to the required level of severity so as to warrant an increased disability rating, as the written behavioral observations in this instance more clearly represent the examiner’s opinion than the checkboxes of symptoms provided in the examination report.  
The Board notes that in the two examinations for PTSD that the Veteran received in December 2015, the first one indicates that the Veteran’s psychiatric disability was manifested by occupational and social impairment due to mild or transient symptoms and the second examination states that the Veteran’s disability was manifested by occupational and social impairment with reduced reliability and productivity. Although the examinations were held within 12 days of one another, each examiner indicated a different severity of the Veteran’s disability. While there is a discrepancy between the examiners in the characterization of the Veteran’s psychiatric disability, as mentioned above, the Board is the fact finder in determining what evaluation is warranted for the Veteran and not the medical professionals. Also, as mentioned above, when completing examination reports, the examiners have a limited ability to compare the different options for how the disability is manifested, particularly in the sections that utilize checkboxes to describe psychiatric symptoms and manifestations. Accordingly, the Board assigns more probative value to written observations and analyses provided by the respective examiners, which were largely consistent with one another, and do not support that the Veteran’s disability has resulted in overall impairment to the required level of severity to warrant an increased disability rating.
In January 2018, the Veteran received another VA examination. The examiner stated the Veteran’s psychiatric disability was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner observed that the Veteran was adequately groomed and casually clad, and that he was alert and oriented. The examiner noted that the Veteran’s affect was blunted, and that his mood was dysphoric. The Veteran’s speech was normal in rate, volume, and tone. Although the examiner noted that the Veteran’s thought processes were goal directed, he noted that the Veteran would lose his train of thought at times. To the extent that some of the symptoms from this examination report are included in the individual rating criteria for a 50 percent rating, the Board finds that the January 2018 VA examination does not support that the Veteran’s disability has resulted in overall impairment to the level of severity so as to warrant an increased disability rating, as the written behavioral observations in this examination also more clearly represent the examiner’s opinion than the checkboxes of symptoms provided in the examination report. Additionally, the examiner’s behavioral observations more closely correspond to the examiner’s finding that the Veteran’s psychiatric disability was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.
In a September 2018 private vocational assessment, the consultant J.S. opined that the Veteran’s psychiatric disability is manifested by reduced reliability and productivity due to PTSD signs and symptoms based in large part on a review of the Veteran’s VA examinations. The consultant did not examine the Veteran.  The Board assigns this opinion lessened probative value, as the consultant bases the opinion on the list of symptoms as described in the checkboxes denoted in the VA examinations. As discussed above, VA examiners have a limited ability to offer detailed analysis and observation in the checkbox sections, and instead offer a more accurate assessment in the behavioral observation sections of the examination reports.  
In terms of behavioral observations, VA examiners have consistently noted similar symptoms for several years. For example, throughout VA examinations from May 2011 to January 2018, the Veteran has been dressed appropriately, had normal speech, and has been alert and oriented. At worst, the Veteran was observed to be anxious, and his mood was observed as either blunt or dysphoric, as indicated in the December 14, 2015 and January 2018 VA examinations. VA treatment records from 2010 to 2017 support the consistency of the Veteran’s behavioral observations by examiners.
The Veteran has reported on multiple occasions that he maintains a good relationship with his grandchildren, and has been employed part time by a family-run business for approximately five years. The May 2014 VA examiner found the Veteran to be pleasant and cooperative. The Veteran has also reported that he maintains a social relationship with two of his wife’s friends. This evidence tends to weigh against a finding that the Veteran’s psychiatric disability symptoms have resulted in occupational and social impairment with reduced reliability and productivity.
Overall, the evidence presents an overall disability picture that supports that the Veteran’s psychiatric disability has manifested in symptoms no worse than the Veteran generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Accordingly, the Veteran’s disability picture does not support a rating in excess of 30 percent for the Veteran’s psychiatric disability. 
In a September 2018 statement, the Veteran’s representative contended that a May 2014 VA treatment record supported a finding that the Veteran’s psychiatric disability was manifested by suicidal ideation. The representative noted that when the Veteran was asked “Have you had thoughts about taking your life?” he responded, “Wouldn’t mind if it happened,” and contended that the Veteran’s response was evidence of suicidal ideation. However, the Board notes that the Veteran indicated in the same response that he did not have thoughts about taking his life and that he was not feeling hopeless. The examiner concluded that the Veteran did not have suicidal ideation. As the Veteran denied thoughts of taking his own life and the examiner also noted that the Veteran did not experience suicidal ideation despite the Veteran’s response, the Board finds that this treatment record does not constitute a finding that the Veteran had suicidal ideation. 
Additionally, in reviewing the evidence of record, the preponderance of the evidence is against a finding that the Veteran has had suicidal thoughts or ideation over the years.  In December 2011, a suicide screen was positive, and the examiner then performed a “full suicide risk assessment” and determined that the Veteran’s risk assessment was low; however, this appears to have been a one-time experience.  Throughout the appeal period, the Veteran overwhelmingly denied suicidal thoughts, ideations, or plans.  For example, the Veteran had negative suicide screens or specifically denied suicidal thoughts/ideations/intensions/plans in November 2010, January 2011, February 2011, March 2011, April 2011, May 2011, June 2011, July 2011, November 2011, February 2012, August 2012, September 2012, October 2012, August 2013, October 2013, January 2014, August 2014, October 2014, November 2014, January 2015, April 2015, June 2015, July 2015, August 2015, September 2015, December 2015, May 2016, June 2016, August 2016, November 2016, June 2017, and August 2017.  The Veteran was consistently evaluated for suicidal thoughts, intent, plan, and ideation, and was consistently found (except December 2011) to not have suicidal thoughts, intent, plan, or ideation.  The one-time report in December 2011 does not establish a basis to assign staged ratings, as, again, the preponderance of the evidence is against a finding that the Veteran has suicidal symptoms (thoughts, intent, plan, ideation), and the ratings contemplate exacerbations of the disability.  38 C.F.R. § 4.1.
The Board is aware that in an April 2018 submission, the Veteran wrote he was depressed and that, “I feel sometimes like I might as well give up.”  It is unclear what that statement means, but the Board still finds that the preponderance of the evidence a finding that the Veteran has suicidal thoughts, intent, plan, or ideations.
The Veteran’s representative also contended that the fact that the January 2018 VA examination indicated that the Veteran experienced near continuous panic or depression affecting the ability to function independently, appropriately and effectively was evidence in support of a 70 percent rating. However, as discussed above, when completing examination reports, the examiners have a limited ability to compare the different options for how the disability is manifested, particularly in the sections that utilize checkboxes to describe psychiatric symptoms and manifestations. There are VA treatment records showing treatment for the Veteran’s psychiatric symptoms from 2010 through 2017 and multiple VA examinations, and the examiners were not documenting near continuous panic or depression as they wrote down the symptoms the Veteran reported he was experiencing or the symptoms that they observed except for the January 2018 examination report.  The Veteran first complained of panic attacks in an April 2018 statement.  In a December 2015 VA examination report, the examiner noted that there was mismatch between the Veteran’s subjective narratives and the objective findings.  The Board finds that the Veteran’s recent report of panic attacks lacks credibility.  The preponderance of the credible evidence is against a finding that the Veteran has near continuous panic or depression affecting the ability to function.  Accordingly, the Board assigns more probative value to written observations and analyses provided by the respective examiners, which were largely consistent with one another and cover a period of seven years, and do not support that the Veteran’s disability has resulted in overall impairment to the required level of severity to warrant an increased disability rating. 
Although the Veteran’s representative contends that various other notations in the Veteran’s VA treatment records and VA examinations from 2011 through 2018 constitute impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships, which are symptoms consistent with either a 70 percent or a 100 percent disability rating, the preponderance of the evidence does not support findings of these symptoms, even when the cited examples by the Veteran’s representative are taken into account, and, as discussed above, the written observations and analyses do not otherwise support that the Veteran’s psychiatric disability supports a rating in excess of 30 percent.  Again, there are VA treatment records from 2010 through 2017 that do not document the level of severity of symptoms that would establish a higher rating.  
The descriptions by the VA examiners do not show that they observed a combination of symptoms that would support that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. Behavioral observations by the examiners do not support overall impairment to the required level of severity to warrant a disability rating in excess of 30 percent. Therefore, to the extent that the evidence of record documents some of the symptoms included in the individual rating criteria for a 50 percent, 70 percent, or 100 percent disability rating, the Board finds that such symptoms have not resulted in overall impairment to the required level of severity so as to warrant an increased disability rating. Therefore, the Board finds that the Veteran’s manifested psychiatric symptoms for the period on appeal are most closely approximated by the assigned 30 percent disability rating. Importantly, the Veteran has not shown reduced reliability and productivity; nor are his psychiatric symptoms of similar severity, frequency, and duration in order to warrant a 50 percent, 70 percent or 100 percent disability rating throughout the rating period. 
Thus, the Board finds that an initial disability rating in excess of 30 percent for the Veteran’s psychiatric disability is not warranted. The preponderance of evidence is against the Veteran’s claim, and the claim for an increased rating is denied.
2. Entitlement to a TDIU rating.
A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id.
The question of unemployability or the veteran’s ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. 
Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.
The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16(a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19.
The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. 
The Veteran meets the minimum disability rating percentage threshold for consideration of schedular TDIU. 38 C.F.R. § 4.16(a). The Veteran has a 60 percent rating for his service-connected ischemic heart disease and a 30 percent rating for his service-connected psychiatric disability, for a combined rating of 70 percent.
According to the Veteran’s application for a TDIU rating filed in November 2011, he completed high school and a four-year apprenticeship to work as a millwright. During his January 2018 VA examination, the Veteran reported working for 30 years at GM, and then for approximately eight or nine years in the maintenance department of a baking company until his heart attack. In the TDIU application, the Veteran’s reported a work history, which included full-time employment in management from January 1999 to October 2007 and from November 2009 to February 2010, consultant work for six months in 2008, and as work as an equipment mechanic July 2009 to October 2011. 
In a private medical record from November 2010, private practitioner B.O. opined that the Veteran’s heart disability does impact the Veteran’s ability to work. During a May 2011 VA examination for PTSD, the examiner noted that the Veteran was likely to have reduced productivity and reliability due to PTSD signs and symptoms. The Board notes that the Veteran was employed during the times of these examinations, and while these examinations indicated that the Veteran’s ability to work was impacted or reduced, the Veteran continued to work full time for approximately five months after the May 2011 VA examination. Furthermore, although the opinions indicated that the Veteran’s ability to work was either impacted or reduced; neither opinion stated that the Veteran was precluded from working due to the severity of his service-connected disabilities. The evaluations assigned to the Veteran’s service-connected disabilities contemplate the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Accordingly, the examiner’s opinions listed in the private November 2010 examination and the May 2011 VA examination do not support that the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.
During a December 2011 VA examination for heart conditions, the examiner opined that the Veteran’s heart disability limited his ability to find a job requiring significant physical activity; however, the examiner opined that the Veteran could easily perform a sedentary job involving light work or a desk job. The Board affords this opinion probative value as the examiner’s opinion is based upon a thoroughly supported rationale, including objective medical evidence of the Veteran’s Metabolic Equivalent of Task (MET) heart testing results. 
During a February 2012 VA examination for PTSD, the examiner opined that due to the Veteran’s diagnosed psychiatric illnesses, he was likely unemployable. The Board finds that the examiner’s opinion is conclusory and unsupported by a rationale. Furthermore, although the examiner notes that the Veteran was severely impacted by a heart attack in 2001, he failed to consider that the Veteran maintained full-time employment in the same position for approximately six years after the heart attack, and continued full-time employment until 2011. Accordingly, the Board assigns this this examination little to no probative value.
During a May 2014 VA examination for PTSD, the examiner opined that the Veteran does not have a functional impairment that impedes the performance of sedentary or physical labor that is attributable to PTSD. The Board affords this opinion probative value as the examiner’s opinion is based upon a thoroughly supported rationale, including an analysis of the Veteran’s psychiatric disability, social, and occupational history.
During a May 2014 VA examination for ischemic heart disease, the examiner stated that the Veteran’s service-connected ischemic heart disease would have only a “mild to moderate impact (easily remedied with reasonable accommodation per federal ADA guidelines) on his ability to secure and maintain substantially gainful physical employment (involving strenuous physical activity) but no impact on his ability to secure and maintain substantially gainful sedentary employment.” The Board affords this opinion probative value as the examiner’s opinion is based upon a thoroughly supported rationale, including an analysis of the impact of the Veteran’s heart disability on physical abilities and activities of daily life
During a December 2, 2015 VA examination for PTSD, the Veteran stated that he had been working part-time driving and delivering flowers for the past two years. The Veteran stated during the examination “I cannot read and I cannot comprehend” and explained that was the reason why his wife attends to complex issues like insurance or taxes. The examiner noted that after this evaluation, the Veteran was able to use a nearby kiosk to read and follow the instructions and was able to print a receipt for travel compensation. Also, the examiner noted that the Veteran had no problems in selecting the correct paperwork from a thick folder of files to present to the examiner’s office. Due to the inconsistency between the Veteran’s reported inability to read or comprehend and his observed ability to operate a kiosk and read and comprehend documents from a large group, the Board finds that the Veteran’s statement of not being able to read and comprehend not credible, and assigns it no probative value. 
During a December 14, 2015 VA examination for mental disorders, the examiner noted that the Veteran has been able to competently sustain independent activities of daily life and work capacities. The Board affords this opinion probative value as the examiner’s opinion is based upon a thoroughly supported rationale, including an analysis of the Veteran’s daily activities, employment, and medical condition.
In a November 2016 VA treatment record, the examiner stated that the Veteran had chronic ischemic cardiomyopathy with residual coronary artery stenosis. The examiner opined that the Veteran would not be able to be employed. The examiner explained that the Veteran reported that he was trained only for industrial or mechanical work. The Board notes that the question of entitlement to TDIU is not based upon whether the Veteran can achieve employment in his desired profession, but whether the service-connected disabilities preclude him from securing and following a substantially gainful employment. The Board must ascertain whether the Veteran can perform the physical and mental acts required by employment, not whether he can find particular employment. Here, the fact that the Veteran has told the examiner that he is not employable because he was trained only for industrial or mechanical work, does not mean that the Veteran is precluded from securing or following any substantially gainful occupation due to his service-connected disabilities. Accordingly, the Board assigns this opinion low probative value.
During a December 2017 VA examination for heart conditions, the examiner opined that the Veteran’s heart disability does not impact his ability to work. The examiner noted that the Veteran takes his wife shopping, goes to the park for fishing, and has a part-time job where he drives a van and delivers flowers. The Board affords this opinion probative value as the examiner’s opinion is based upon a thoroughly supported rationale, which rationale included real-life experiences.
During a January 2018 VA examination in relation to PTSD, the Veteran reported that he had worked part time for the previous three years driving a van and delivering flowers. The Veteran contended that he could maintain his job solely due to the fact that he was employed in a family business. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Board affords this opinion probative value as the examiner’s opinion is based upon a thoroughly supported rationale.
In a September 2018 statement, the Veteran’s employer indicated that the Veteran’s schedule was adjusted to accommodate him for doctor’s appointments, delivery routes were adjusted so that the Veteran’s allergies are not affected, and the Veteran was occasionally permitted to use a company vehicle to drive to a doctor’s appointment at the end of a route, if it is necessary to do so.
In a September 2018 private vocational assessment, the private rehabilitation consultant, J.S., opined that the Veteran’s service-connected disabilities precluded him from securing or following any substantially gainful occupation. According to J.S., the Veteran was able to work at his flower delivery position only because of the very liberal work accommodations provided by his employer that are not generally afforded to workers in the general labor market. The Board finds that this opinion is outweighed by the probative evidence of record. The statement from the Veteran’s employer did not indicate that the accommodations afforded to him were so unusual that they were not typically afforded to workers in the general labor market, nor does the Board find that occasional schedule adjustments for medical appointments and related accommodations to be evidence in support of a finding of a protected work environment. 
In a September 2018 statement, the Veteran’s representative contended that the fact that the Veteran worked part-time, and occasionally made mistakes is evidence in support of a finding that the Veteran is employed in a protected work environment. However, the Board finds that continued employment despite occasional mistakes does not constitute a protected work environment, as mistakes are a part of everyday life. Additionally, the record does not support that the Veteran is restricted to part time employment. 
The Board has considered the opinions of the medical professionals; however, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner.
The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 
The September 2018 private opinion indicated that the Veteran’s service-connected disabilities preclude the Veteran from securing and maintaining substantially gainful employment. As discussed above, this opinion is based largely on the Veteran’s VA examination reports. However, the VA examiners from December 2011, May 2014, December 2015, December 2017, and January 2018 did not conclude that the Veteran’s service-connected disabilities precluded the Veteran from securing and maintaining substantially gainful employment. At worst, some VA examiners stated that only the Veteran’s ability to engage in sedentary employment was not impacted; and the January 2018 VA examiner found that the Veteran may suffer from an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. 
The record shows that the Veteran has been working part time for approximately five years by driving a van and delivering flowers, although he states he does not receive significant pay. The Veteran generally contends that he works in a protected environment in a family business. The Veteran explains that the job is easy to perform, that he receives written directions to each destination, and that the deliveries are not time sensitive. The Veteran contends that his employer is very lenient and that he would not otherwise be able to perform the job. The Board notes that the Veteran does not indicate that the business belongs to his own family, only that it is a family-run business. Regardless, the facts the Veteran is reporting does not cause the Board to conclude that he is in a sheltered workshop, as most employers make accommodations for their employees.
The Board finds that the Veteran’s part-time employment does not constitute a protected work environment. The statements from the Veteran do not represent an employment scenario that could not be sustained except through a protected work environment. Furthermore, the statements from the Veteran indicate that he is able to drive a delivery vehicle, follow work instructions, and complete deliveries. As mentioned above, although the Veteran works part time only, the evidence does not support that he is unable to work full time, only that he has chosen not to do so.  His high-school education has not limited his ability to do this job.
The fact that several VA examiners have found that the Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities, and that the Veteran has been able to perform the mental and physical tasks for his delivery job for approximately five years, all tend to weigh against a finding that the Veteran is unable to secure and maintain gainful employment due solely to his service-connected disabilities.
For all the reasons discussed above, the Board finds the preponderance of the evidence is against a finding that the Veteran is unable to secure and maintain gainful employment due solely to his service-connected disabilities. The record ultimately reflects the Veteran is capable of sedentary and minimal physical employment, subject to limitations that are not outside the bounds of those adequately contemplated by schedular criteria, with his high school education.
In light of the foregoing, the Board finds the evidence to preponderate against the claim for a TDIU rating, and the claim is denied.
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Husain, Associate Counsel