Citation Nr: 19136697 Decision Date: 05/10/19 Archive Date: 05/10/19 DOCKET NO. 17-06 550 DATE: May 10, 2019 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. From April 12, 2012 to June 25, 2012, entitlement to a rating in excess of 20 percent for service-connected hepatitis C (previously diagnosed and service-connected as hepatitis B) is denied. From June 26, 2012 forward, entitlement to a rating in excess of 40 percent thereafter for service-connected hepatitis C (previously diagnosed and service-connected as hepatitis B) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. The evidence of record does not demonstrate that the Veteran’s PTSD was productive of a disability rating in excess of 50 percent as the Veteran’s symptoms consisted of no more than depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. 3. From April 12, 2012 to June 25, 2012, the Veteran’s hepatitis C was manifested by subjective complaints of intermittent fatigue but no ongoing significant malaise, nausea, vomiting, anorexia, arthralgias or right upper quadrant pain; incapacitating episodes requiring bed rest and treatment by a physician have not been shown. 4. From June 26, 2012, the Veteran’s hepatitis C was manifested by fatigue occurring daily, with minor weight loss and hepatomegaly but was not manifested by substantial weight loss (or other indication of malnutrition), or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period. 5. The evidence of record is at least in equipoise that the Veteran’s service-connected disabilities precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for a rating in excess of 50 percent rating for PTSD were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). 3. From April 12, 2012 to June 25, 2012, the criteria for a rating in excess of 20 percent evaluation for hepatitis C were not met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7354 (2018). 4. From June 26, 2012, the criteria for a rating in excess of 40 percent evaluation for hepatitis C were not met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7354 (2018). 5. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1969 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 (hepatitis C) and November 2014 (bilateral hearing loss, PTSD, TDIU) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that additional VA and private medical records, third party statements, medical articles, and an opinion from a rehabilitation expert were received following the last adjudication by the RO in the January 2017 (hepatitis C) and May 2017 (bilateral hearing loss, PTSD, TDIU) supplemental statement of the case. The Veteran waived RO consideration for all the new evidence associated with the file since the last supplemental statement of the case. See March 2019 Correspondence and October 2017 VA Examination. Service Connection Generally, to establish service connection a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral hearing loss, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Sensorineural hearing loss are considered organic diseases of the nervous system, which is listed as a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply to the claim for hearing loss. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for bilateral hearing loss is denied. At the outset, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. See October 2014 C&P Exam. As such, the first element of service connection is met. As for the second element of service connection (in-service injury, disease, or event), a review of the service treatment records shows that the Veteran had normal ears and drums with no ear trouble or hearing loss in the April 1969 examination, July 1972 periodic examination, and May 1973 separation examination. See January 1974 STR – Medical. In fact, the service treatment records are void of any complaints, symptoms, signs, or diagnoses of bilateral hearing loss. However, as the Veteran stated that he surveyed airstrip construction and witnessed rocket blasts (albeit “not all that close”) the Board concedes that the Veteran was exposed to some degree of noise during active service. See January 2010 Military Personnel Record. What remains for consideration is whether the Veteran’s current bilateral hearing loss is related to his in-service noise exposure. Post-service treatment records show that the Veteran did not report bilateral hearing loss until many years after his separation from service. The Veteran was diagnosed with unspecified hearing loss in 1997, about 25 years after service. See December 2001 Medical Treatment Record – Government Facility. However, subsequent records in 2005 to 2007 show that the Veteran did not exhibit any hearing problems and was noted to have adequate hearing. See October 2010 Medical Treatment Record – Government Facility. The Veteran was afforded a VA examination in October 2014 wherein the examiner opined that it is less likely as not that the Veteran’s bilateral hearing loss was caused by or a result of an event in service. The examiner explained that the enlistment examination and separation examination showed normal hearing bilaterally with no significant threshold shift. The Board affords great probative value to the October 2014 VA examiner’s opinion as it is supported by, and is consistent with, the medical evidence of record. Specifically, the records show that the Veteran did not have a diagnosis of bilateral hearing loss until 1997, about 25 years after service and subsequent records show that the Veteran affirmatively denied having any hearing loss in 2005, 2006, or 2007. See October 2010 Medical Treatment Record – Government Facility. The Board acknowledges the Veteran’s lay statement that military noise exposure caused his bilateral hearing loss. However, such an opinion of nexus requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). To the extent the Veteran reports that he has experienced hearing loss since service, the Board does not find his assertions persuasive, as they are inconsistent with the more probative evidence of record. As reflected above, he denied hearing loss upon his separation from service, and denied having hearing loss in 2005, 2006, and 2007. It is reasonable to conclude that if the Veteran had experienced hearing loss on a continual basis since service, that he would have reported such at some point, as opposed to expressing denial that he experienced such. Accordingly, the Board does not find his reports that he has experienced hearing loss since service to be persuasive and they are afforded little probative value. As stated above, the Veteran’s service treatment records show normal ears and drums in service, and his post-service records show no hearing loss until 1997, about 25 years after service. Further, the Board finds the October 2014 VA examiner’s opinion persuasive and probative that the Veteran’s bilateral hearing loss is less likely than not caused by or a result of his military noise exposure. The opinion is based on a review of the Veteran’s service treatment records and is supported by a rationale and clinical expertise. Thus, the Board finds there is no competent evidence of record to provide a nexus between the Veteran’s bilateral hearing loss and service. In conclusion, although the Veteran has established a current disability and in-service noise exposure, the preponderance of the evidence establishes that his bilateral hearing loss was not manifested during service or for many years thereafter and is not otherwise related to his active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 2. Entitlement to a rating in excess of 50 percent for PTSD is denied. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. 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. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. As an initial matter, the Board notes that the Veteran applied for an increased rating in August 2014. The preponderance of the evidence is against a rating in excess of 50 percent for his service-connected PTSD. A review of the medical evidence shows that the Veteran was afforded VA examinations in October 2014 and March 2016 with a July 2017 disability benefits questionnaire (DBQ) completed by a private psychologist. In the October 2014 VA examination, the Veteran stated that he continues to socialize with a select group of friends, many of whom have been lifelong friends. Recently, the Veteran returned from a vacation to Florida. He went to a casino boat, played golf, and went out to restaurants. The Veteran stated that he still has symptoms of anxiety but is better equipped to effectively cope with triggers associated with his history of combat trauma. The Veteran endorsed symptoms such as depressed mood, anxiety, and disturbances of motivation and mood. On examination, the Veteran was noted to have normal hygiene and grooming. His speech was spontaneous and fluent. His thought progression was logical, relevant, and goal-directed. The Veteran’s thought content was without suicidal or homicidal intent or cognitive/perceptual distortions such as hallucinations or delusions. The Veteran’s affect was full, and mood was euthymic. The Veteran had access to humor and was friendly throughout. The examiner determined that the Veteran had mild to moderate level of functional impairment. As such, the examiner opined that the Veteran had 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. In the March 2016 VA examination, the Veteran reported that he struggled around February 2016 as his brother passed away from leukemia. Otherwise, his marriage was going well, and he continues to play golf with his friends. The Veteran reported that since he quit drinking he was handling his PTSD symptoms better. The Veteran endorsed symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. On examination, the Veteran’s hygiene and grooming were adequate and he was dressed appropriately for the weather. He appeared alert, oriented, and not experiencing acute distress. His content of speech was logical, coherent, and goal-directed. The Veteran’s mood was euthymic with affect congruent to mood. The Veteran was friendly, cooperative, and agreeable throughout the examination. There was no evidence of auditory or visual hallucinations, perceptual disturbance, or delusions. The Veteran denied suicidal and homicidal ideation, intent, and plans. The examiner concluded that there were no appreciable changes in the Veteran’s psychosocial functioning compared to the October 2014 VA examination and that the Veteran continued to exhibit mild to moderate level of functional impairment. As such, the examiner opined that the Veteran had 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. In the July 2017 PTSD DBQ completed by a private psychologist, the Veteran endorsed the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, near-continuous panic or depression, mild memory loss, impairment with short-term and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The Veteran reported that he was socially isolated and withdrawn. The Veteran stated that he has memory problems as his wife would constantly remind him to shower, shave, and get a haircut. On mental status examination, the Veteran’s attention was normal, but his concentration appeared variable. The Veteran complained of increased trouble with short and long-term memory. The Veteran’s speech flow was normal, although he was brief with the information offered. His thought content was appropriate for the circumstances and his organization of thought was goal directed. The psychologist opined that the Veteran has occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. Based on the evidence of record, the Board finds that the Veteran’s PTSD is more consistent with a 50 percent disabling rate. Further, the Board affords great probative value to the October 2014 and March 2016 VA examiners’ opinions and little probative value to July 2017 psychologist’s opinion, as the examiners’ assessments are well supported by, and are consistent with the medical records. The Veteran has substantial and voluminous mental health treatment records. In 2014 to 2017, the treatment records consistently noted that the Veteran was casually dressed and groomed. The Veteran’s speech was within normal limits, affect was appropriate, and his mood was mildly depressed. The Veteran’s thought process was appropriate and goal directed, and his thought content was within normal limits without any cognitive or perceptual distortion. See May 2017 CAPRI. The Veteran’s insight and judgment were fair. The Veteran also denied having any suicidal or homicidal ideation. Unlike the July 2017 private psychologist’s assessment, the records do not note of any neglect in personal appearance or hygiene, social withdrawal or isolation, or impaired memory or concentration. As the Veteran predominantly had depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood, they do not more nearly approximate the 70 percent criteria. Rather, the Board finds that the Veteran’s PTSD is no higher than 50 percent disabling. Accordingly, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent disabling as the preponderance of the evidence does not reflect occupational and social impairment, with deficiencies in most areas, and inability to establish and maintain effective relationships. Accordingly, the criteria in excess of 50 percent rating are not met. 38 C.F.R. §§ 4.7, 4.130 Diagnostic Code 9411. 3. Entitlement to a rating in excess of 20 percent from April 12, 2012 to June 25, 2012, and a rating in excess of 40 percent thereafter for service-connected hepatitis C (previously diagnosed as hepatitis B) is denied. Under Diagnostic Code 7354, a 10 percent rating for hepatitis C contemplates intermittent fatigue, malaise and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week but less than two weeks during the past 12-month period. The next higher rating, 20 percent, requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) requiring dietary restriction or continuous medication, or; incapacitating episodes of at least two weeks but less than four weeks in the last 12 months. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12-month period. A 60 percent rating is warranted for daily fatigue, malaise and anorexia, with substantial weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 6 weeks during the past 12- month period, but not occurring constantly. Finally, a 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). The schedule indicates at Note (1): Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Diagnostic Code 7345 and under a diagnostic code for sequelae. 38 C.F.R. §§ 4.14, 4.115, Diagnostic Code 7354. The schedule further indicates at Note (2): For purposes of evaluating conditions under diagnostic code 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. For purposes of evaluating conditions, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. In addition, the term “inability to gain weight” means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and “baseline weight” means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. As an initial matter, when dealing with an increased rating claim, the appropriate period on appeal dates to one year prior to the date of the Veteran’s claim. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Here, the Veteran applied for an increased rating in August 2012. As such, the issue before the Board is entitlement to an increased rating for the one year prior to the Veteran’s claim for an increase, which is August 2011. A review of the records shows that the Veteran was afforded VA examinations in December 2012 and April 2013. In the December 2012 VA examination, the Veteran endorsed the following symptoms: intermittent fatigue, intermittent arthralgia, and hepatomegaly. The Veteran also exhibited splenomegaly as a result of cirrhosis of the liver. The Veteran denied having any incapacitating episodes. In the April 2013 VA examination, the Veteran stated that he opted to stop treatment for his hepatitis C due to decreased quality of life related to persistent side effects from the medications. The Veteran endorsed the following symptoms: daily fatigue, intermittent right upper quadrant pain, and hepatomegaly. A review of the treatment records is consistent with the findings from the December 2012 and April 2013 VA examinations. In April 2012, the Veteran admitted to chronic fatigue. See December 2012 CAPRI. Additionally, a June 26, 2012 ultrasound of the abdomen revealed mild hepatosplenomegaly. See May 2017 CAPRI. The Veteran continued to complain of chronic fatigue but denied nausea, vomiting, and weight loss. See May 2017 CAPRI and December 2012 CAPRI. Based on the evidence of record, the Board finds that prior to June 26, 2012, the Veteran’s hepatitis C is consistent with a 20 percent disabling rating as the Veteran admitted to daily fatigue. The Veteran is not entitled to a rating in excess of 20 percent prior to June 26, 2012 as the Veteran did not exhibit hepatosplenomegaly. However, on June 26, 2012, an ultrasound of the abdomen revealed hepatosplenomegaly. As such, the Veteran’s hepatitis C was rated at 40 percent disabling. The Veteran is not entitled to a rating in excess of 40 percent from June 26, 2012 forward as the records does not show substantial weight loss or incapacitating episodes with a duration of at least 6 weeks during a 12-month period. Accordingly, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent prior to June 26, 2012 as the preponderance of the evidence reflects only daily fatigue. As of June 26, 2012, the records show that the Veteran had daily chronic fatigue with hepatomegaly, but no substantial weight loss or incapacitating episodes of a total duration of at least six weeks. Accordingly, the Veteran’s claim is denied. 38 C.F.R. §§ 4.7, 4.114 Diagnostic Code 7354. 4. Entitlement to a TDIU due to service-connected disability is granted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 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.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16(b). See Johnson v. McDonald, 762 F.3d 1362 (2014). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As an initial matter, the Board notes that the Veteran applied for a claim for TDIU in August 2014. As of August 2014, the Veteran is service connected for PTSD rated at 50 percent effective August 30, 2012; hepatitis C rated at 40 percent effective June 26, 2012; tinnitus rated at 10 percent effective April 11, 2014; and cyst of the right ear at a noncompensable rating effective June 9, 1973, with a combined elevation of 70 percent. As such, the Veteran is eligible for TDIU consideration on a schedular basis. Turning to the relevant evidence, the Veteran alleged that he is unable to secure or follow any substantially gainful occupation due to his service-connected PTSD. Specifically, the Veteran stated that he “simply walked out” from his job at YSK and from his post office job. See December 2012 Correspondence and November 2014 VA 21-4192 Request for Employment Information in Connection with Claim. The Veteran stated that he quit his jobs as his anxiety was very high. The Veteran tried to work in vocational rehabilitation program at the VA, but he had to walk away many times and eventually quit. The records indicate that the Veteran’s education consist of a being a high school graduate. See August 1975 Education – General. A review of the medical records shows that the evidence of record is at least in equipoise that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. Regarding the Veteran’s hepatitis C, the December 2012 VA examiner opined that the Veteran’s hepatitis C impacts the Veteran’s ability to work as the Veteran has daily fatigue. However, the April 2013 VA examiner opined that the Veteran’s hepatitis C would have no impact on the Veteran’s ability to work. As for the Veteran’s PTSD, the October 2014 and March 2016 VA examiners opined that the Veteran had occupational and social impairment with mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The January 2017 VA examiner opined that it is unlikely that the Veteran’s service connected disabilities impact the Veteran’s ability to function in an occupational setting. The VA examiner stated that this is evidenced by the Veteran’s relative success while participating in vocational rehabilitation services and the positive supervisory feedback for his work noted in his record. In contrast, the Veteran submitted third-party statements, medical articles, and an opinion from a rehabilitation expert and a medical expert. The third-party statements essentially reiterated the Veteran’s contentions that he is unable to work due to his anger, impaired memory, and social avoidance. See December 2012 Buddy/Lay Statement and October 2017 VA Examination. The Board affords little probative value to the third-party statements as they are inconsistent with the records as noted above. For instance, in the October 2014 VA examination, the Veteran stated that he had an active vacation to Florida and he was on a casino boat, played golf, and went out to restaurants which does not support the third-party statements that the Veteran has social avoidance. Further, the records do not indicate that the Veteran even endorsed having anger issues or memory problems. Accordingly, little probative value is given to the third-party statements. Regarding the medical articles, the articles indicate that veterans with mental disability has some difficulty holding a job. See October 2017 VA Examination. In particular, the articles stated that PTSD is a potentially disabling mental illness that can cause occupational dysfunction. Further, PTSD significantly lowers the veteran’s likelihood of working. On average, a veteran with a lifetime diagnosis of PTSD was 8.5 percentage points less likely to be working than a veteran who did not meet the diagnostic criteria. The Board affords little probative value to the medical articles on file as the articles were not specific to the same level of severity as the Veteran’s PTSD. The studies conducted included veterans with all spectrums of PTSD and therefore the conclusions from the studies are generic and has little probative value to the Veteran’s claim. As for the medical expert, a July 2017 psychologist opined that the Veteran would miss three or more days of work per month due to his PTSD. Further, the psychologist opined that the Veteran would be unable to focus for at least 7 hours of an 8-hour workday more than three days per month. Moreover, the psychologist opined that the Veteran would respond inappropriately when subjected to normal pressures and constructive criticisms of a job. As noted above, the Board affords little to no weight to the July 2017 psychologist as her opinion and determination is significantly inconsistent with the longitudinal history of the Veteran’s PTSD. Regarding the rehabilitation expert (RE), the RE stated that most employers will not tolerate excessive absences which is about .5 to 1 day per month. Further, the RE stated that being off task for about 5 percent of the time would prevent a worker from sustaining competitive work. The RE opined that the Veteran would miss more than one day of work and would likely be off task more than 5 percent of the time due to his emotional and physical symptoms. The Board affords some probative value to the RE’s assessment, but not high probative value as the RE considered the July 2017 psychologist assessment that the Board found highly inconsistent with the records. Based on the Veteran’s statement and the evidence of record, the Board finds that the Veteran’s depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood coupled with his daily fatigue from hepatitis C would render the Veteran to miss more than one day of work and/or be more than 5 percent off task. As such, the Board finds (Continued on next page)  that the evidence of record is in equipoise and as such the Veteran’s claim for entitlement to a TDIU is granted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.