Citation Nr: 18157057 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 18-46 268 DATE: December 11, 2018 ORDER Entitlement to an initial 50 percent rating for posttraumatic stress disorder (PTSD) for the period since November 19, 2013 is granted. Entitlement to an initial rating in excess of 50 percent for PTSD is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s PTSD is manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment was shown. 2. The Veteran’s service-connected PTSD is not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. For the period since November 19, 2013, the criteria for an initial evaluation of 50 percent, but no higher, for PTSD are met. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial evaluation in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1944 to March 1946. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2018 statement of the case (SOC), the RO granted an initial 50 percent disability rating for the Veteran’s PTSD, effective July 27, 2017. The Board notes that the increase from 30 to 50 percent for PTSD did not constitute a full grant of the benefits sought. Accordingly, the issue of entitlement to initial rating in excess of 50 percent for PTSD for the period since July 27, 2017 remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (“Court”) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran indicated that he was currently unable to work as he was permanently disabled. As a result, the Board finds that a TDIU claim has been raised by the record and the issue is added to the issues on appeal. 1. Higher Initial Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. In an April 2017 rating decision the RO granted service connection for PTSD at an initial 30 percent disability rating, effective November 19, 2013 under Diagnostic Code 9411. As noted above, a June 2016 SOC granted an initial 50 percent rating for PTSD, effective July 27, 2017 under Diagnostic Code 9411. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the “psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 61 to 70 reflect some mild symptoms [e.g., depressed mood and mild insomnia] or some difficulty in social, occupational, or school functioning [e.g., occasional truancy, or theft within the household], but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more 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]. Scores ranging from 41 to 50 reflect 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]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran’s case was certified to the Board after August 4, 2014, DSM-5 applies, and GAF scores are no longer used in evaluation of psychiatric disorder. Id. However, the examiner’s discussion of symptoms associated with any assigned score would still be useful in evaluation of psychiatric disabilities. Factual Background and Analysis In a June 2013 correspondence, a private physician noted that the Veteran had chronic PTSD and that he had nightmares at least 2 times per week where he woke up in panic and sweats. He also had flashbacks. The Veteran averaged 4 to 6 hours of sleep per night. The physician noted that the Veteran startled easily and he could not tolerate anyone behind him. He did however socialize frequently with both family and friends. His recent memory was mildly impaired and his working memory was 60 percent impaired. He also felt depressed some of the time with no energy. The physician found that because of the Veteran’s PTSD, he was moderately compromised in his ability to sustain work relationships. The Veteran underwent a VA examination in June 2014. However, the examiner found that the Veteran did not meet the criteria for PTSD and also determined that the Veteran did not have a psychiatric diagnosis at this time. The examiner noted that a private physician in a June 2013 correspondence had assessed the Veteran with a GAF score of 45 which was suggestive of someone who had serious symptoms or serious impairments in social or occupational functioning. However, the examiner indicated that the Veteran had reported past and current good functioning that was in stark contrast to the assigned GAF score. Notably, the Veteran had held the same position at his job as a technician for 16 years prior to retirement in which he did not have any disciplinary problems. The Veteran also reported enjoying his job while also having positive relationships with the majority of his friends and family. He had a good relationship with his wife of 26 years and also had regular contact with his daughter, siblings and in-laws. He had several hobbies that kept him active including fishing, yard work, hunting and attending church on a weekly basis. Regarding occupational functioning, he was currently retired due to a medical disability. Prior to his retirement in 1981, he had several steady jobs where he denied disciplinarian problems or termination from his duty and also denied having trouble performing his duties. He denied significant interpersonal difficulties that interfered with his work. While working for his brother-in-law as a technician for 16 years, he reported that he would have arguments with him about twice a year over pay and his working conditions but these arguments did not result in any disciplinarian action. The examiner noted that overall the Veteran described good social and occupational functioning. On a November 2017 Disability Benefits Questionnaire (DBQ) for PTSD, a private physician found that the Veteran’s level of occupational and social impairment with regard to his mental diagnoses was best described as occupational and social impairment with reduced reliability and productivity. The Veteran reported having good relationship with his wife of 30 years and he also had a close, adequate support system as he friends that helped him out with doing things. He also contacted his siblings regularly by phone. The Veteran described himself as friendly. He also worked as a refrigeration technician for almost 20 years but retired in 1982 due to a disability. He was not currently working. The Veteran indicated that in the mid-1990’s he had suicidal thoughts when he had prostate surgery. The examiner noted that the Veteran was endorsing having intrusive thoughts, nightmares, flashbacks, psychological and physiological distress due to triggers of trauma, avoidance of thoughts and external reminders or trauma, emotional numbness, detachment from others, persistent and exaggerated negative beliefs, distorted cognitions surrounding the trauma, persistent negative emotional state, irritability, hypervigilance, and exaggerated startle response. He also reported having feelings of depressed mood, worthlessness, and hopeless as well as fatigue, difficulty concentrating, anhedonia, guilt and sleep disturbance. He also noted having panic attacks 3 to 4 times per month. He was not currently having suicidal or homicidal thoughts. There was no evidence of delusions, hallucinations, disorganized speech or bizarre behaviors. He had anxiety-related symptoms of hearing his wife call his name when she is not and these were not psychotic symptoms. On examination, the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss and disturbances of mood and motivation. The examiner noted that the Veteran’s hygiene and dress were adequate. He was cooperative and friendly during the examination and his thought process was goal directed. There were no psychotic symptoms observed or reported. His speech was within normal limits and his concentration was good. He was alert and oriented times 3. He endorsed some memory problems on examination but his memory appeared to be adequate regarding recounting his history. His insight and judgment were good. Based on the reported symptomatology of the Veteran’s psychiatric symptoms, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 50 percent rating is warranted from November 19, 2013, the initial date of service connection. The Veteran’s PTSD symptoms were manifested by depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss and disturbances of mood and motivation. Additionally, the Veteran endorsed having intrusive thoughts, nightmares, flashbacks, psychological and physiological distress due to triggers of trauma, avoidance of thoughts and external reminders or trauma, emotional numbness, detachment from others, persistent and exaggerated negative beliefs, distorted cognitions surrounding the trauma, persistent negative emotional state, irritability, hypervigilance, and exaggerated startle response. Notably, the November 2017 DBQ questionnaire from a private psychologist specifically indicated that the Veteran’s social and occupational impairment with regard to all mental diagnoses was best summarized as occupational and social impairment with reduced reliability and productivity. This description corresponds squarely with the schedular requirements for the assignment of a 50 percent disability rating for PTSD under the General Rating Formula. Accordingly, the Board finds that an initial 50 percent rating is warranted from the Veteran’s effective date of service connection as the Veteran’s PTSD is indicative of reduced reliability and productivity. However, the preponderance of the evidence establishes that the social and occupational impairment from the disability has not more nearly approximated the deficiencies in most areas required for a 70 percent rating. In this regard, the evidentiary record was negative for obsessional rituals which interfered with routine activities, speech which was intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting his ability to function independently, spatial disorientation or neglect of personal hygiene. Moreover, the rating criteria for a 70 percent evaluation require that a claimant be unable to establish or maintain social relationships. Notably, the Veteran’s social impairment more closely contemplates a 50 percent evaluation as he has remained married to his wife of over 30 years while also having a good relationship with his daughter and siblings. As a result, the Board finds that an inability to establish or maintain social relationships is not demonstrated. Additionally, there were no psychotic symptoms and there was no evidence of delusions. The Veteran’s memory was also intact and was oriented times 3. There also is no indication that the Veteran demonstrated any suicidal or homicidal ideation during this period. While it was noted that the Veteran experienced suicidal ideation due to prostate surgery in 1990, the November 2017 DBQ physician specifically indicated that the Veteran was not currently having suicidal or homicidal thoughts. The Board notes that a private physician in a June 2013 correspondence had assessed the Veteran with a GAF score of 45 which was suggestive of someone who had serious symptoms or serious impairments in social or occupational functioning. However, the June 2014 VA examiner specifically addressed this assessment and noted that the Veteran had reported past and current good functioning that was in stark contrast to the assigned GAF score. Additionally, as again noted above, the most recent evaluation in November 2017 specifically found that the Veteran’s social and occupational impairment with regard to all mental diagnoses was best summarized as occupational and social impairment with reduced reliability and productivity which corresponds squarely with the schedular requirements for the assignment of a 50 percent disability rating for PTSD under the General Rating Formula. Thus, while the record demonstrates that the Veteran does have some social and occupational impairment which impact his quality of life, the greater weight of evidence demonstrates that it is to a degree less that is contemplated by an initial 50 percent rating. Furthermore, even resolving any reasonable doubt in the Veteran’s favor, the Board finds that he does not meet the requirements for an evaluation greater than the 50 percent schedular rating. While the Veteran has some of the criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed a 50 percent rating. Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran’s complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran’s level of social and occupational impairment does not warrant a rating in excess of a 50 percent rating. Accordingly, this evidence demonstrates that prior to the Veteran did not have deficiencies in most of the areas in the criteria for a 70 percent rating nor had he been shown to have most of the symptoms listed as examples in the criteria. As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it logically follows that criteria for an even higher rating (100 percent) have not been met. There is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, or disorientation to time or place. Thus, the Board finds that the Veteran’s symptoms more closely approximated the criteria for an initial 50 percent disability rating. Thus, for all the foregoing reasons, the Board finds that an initial rating of 50 percent, but no higher, for PTSD is warranted. 2. TDIU Laws and Regulations A TDIU may be assigned when a 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) (2017). 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 to bring the combined rating to 70 percent or more. Id. Currently, the Veteran is service connected for a PTSD disability at an initial 50 percent disability rating. Accordingly, his combined disability rating is 50 percent which does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2017). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran’s claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. On review of the record, the Board finds that the Veteran was not unemployable by reason of his service-connected PTSD disability and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted. The record demonstrates that the Veteran’s PTSD disability impacts his ability to perform occupational tasks. Notably, the November 2017 DBQ questionnaire from a private psychologist also indicated that the Veteran had occupational and social impairment with reduced reliability and productivity. While the Board is sympathetic for the restrictions that encompassed his service-connected PTSD disability, the evidence clearly demonstrates that the Veteran’s service-connected PTSD disability did not preclude all forms of employment. Notably, the June 2014 VA examiner reported that the Veteran had held the same position at his job as a technician for 16 years prior to retirement in which he did not have any disciplinary problems. While he was currently retired due to a medical disability (not PTSD), the Veteran also reported enjoying his job when he was working. The examiner also noted that prior to his retirement in 1981, the Veteran had several steady jobs where he denied disciplinarian problems or termination from his duty and also denied having trouble performing his duties. He also denied significant interpersonal difficulties that interfered with his work. Additionally, the medical evidence does not contain an opinion that the Veteran’s service-connected PTSD disability precludes him from obtaining or engaging in substantially gainful employment and the Veteran has not presented or identified any such existing medical evidence or opinion. The statements of the Veteran as to his employability as a result of his service connected PTSD disability have been considered and they are found to be competent, credible and probative as to the symptoms experienced and observed. However, they are outweighed by the evidence of record. Here, the central inquiry is whether the Veteran’s service-connected PTSD disability, alone, is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran’s service-connected PTSD disability precludes him from obtaining or engaging in substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU and that referral for consideration of entitlement to TDIU on an extraschedular basis is not required. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel