Citation Nr: 20002897 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 18-42 771A DATE: January 14, 2020 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to a to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have currently diagnosed PTSD related to a verified in-service stressor, to include military sexual trauma. 2. Currently diagnosed depression was not incurred in or caused by active service. 3. The Veteran has been unable to secure or follow a substantially gainful or more than marginal employment due to non-service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (b) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from May 1973 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in July 2019 for a VA examination, which substantially complied with prior remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Upon review of the Veteran’s claims file, the Board notes that evidence has been added to the record that was not previously considered by the RO, specifically VA treatment records dated August 2019 through September 2019 and private psychiatric treatment records dated September 2019 through October 2019. Recent statutory provisions allow for an automatic waiver of initial RO review of post-substantive appeal evidence submitted by the Veteran for appeals filed after February 2, 2013. See 38 U.S.C. § 7105 (e) (2012); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for the automatic waiver of AOJ review of evidence submitted directly to the Board during the appeal period for substantive appeals filed after February 2, 2013). The automatic waiver provisions apply to evidence submitted by the Veteran after the most recent August 2019 supplemental statement of the case, where the Veteran filed a substantive appeal in September 2018. And while the automatic waiver provisions do not apply to evidence submitted by the RO, the Board finds that proceeding with a decision at this time is non-prejudicial as the VA treatment records associated with the record are not pertinent to the claims on appeal. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). In addition to the laws and regulations outlined above, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304 (b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis ends and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.304 (f) (2018). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b) (2012); 38 C.F.R. § 3.304 (f) (2018). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). When a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. 38 C.F.R. § 3.304 (f)(5) (2018); see also Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include, but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5) (2018). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2018). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). VA treatment records and a June 2017 VA examination discuss the Veteran’s psychiatric history, with depression existing prior to service. The Board finds that depression or any other psychiatric disability were not “noted” on the April 1973 entrance examination, and the presumption of soundness attaches. As such, the burden has shifted to VA to rebut the presumption of soundness. Wagner, 370 F.3d 1089. After reviewing all of the evidence of record, the Board finds that there is no clear and unmistakable evidence that establishes that that depression preexisted service. In a June 2017 VA examination, the examiner indicated that the Veteran had depressive symptoms prior to service, however, within the same examination, the Veteran said he idealized his childhood, suggesting that he did not have any preexisting psychiatric problems. Further, within a June 2019 VA medical opinion, the examiner opined that diagnosed depression clearly and unmistakably did not preexist the Veteran’s service, and therefore, the disorder was clearly and unmistakably not aggravated by service. This opinion was based on a thorough file review and interview of the Veteran. In sum, the 2017 VA medical opinion, and the Veteran’s own lay statements indicating that depression preexisted service are insufficient to establish clearly and unmistakably that a preexisting disability was present on service entrance given the ample evidence to the contrary to include the June 2019 VA opinion. Accordingly, the Board finds that the evidence does not show, clearly and unmistakably, that depression both preexisted service and was not aggravated in service. Therefore, the presumption of soundness at service entrance has not been rebutted, and the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097 (2018). The Veteran contends that his current psychological disabilities were incurred in or aggravated in service by an incident of military sexual trauma (MST). Specifically, the Veteran, within the April 2017 claim and a June 2017 stressor statement, reported that while in service, he was bribed by the yeoman aboard the USS Kansas City, who said he would give rid of the Veteran’s paperwork regarding a pending Captain’s Mast if he participated in sexual acts. He does not assert that he engaged in combat. Since service, the Veteran reported having four relationships since service-separation, with a history of domestic violence, having issues maintaining work and having issues with marijuana and alcohol. He indicated that he has not spoken about his assault with anyone until very recently because he was ashamed of what happened and have worked hard for many years to keep it repressed. He also stated that he recently acknowledged that he suffered military sexual trauma while in the U.S. Navy when being interviewed by a VA employee at the VA CBOC in Long View, Texas. Military personnel records from September 1973 show the Veteran received non-judicial discipline for the possession of a dangerous weapon, committing an assault upon another by striking him with his fists, and committing an assault upon another by cutting at him with a knife. A December 1974 memorandum from the Commanding Officer, USS Kansas City, to the Chief of Naval Personnel, recommends discharge of the Veteran by reason of unfitness. The primary reason for processing was the Veteran’s frequent involvement of a discreditable nature with military authorities. Military offenses, in addition to those mentioned above, included breach of peace and absent for 17 hours and 53 minutes from the ship’s movement. In the comments section, the Commanding Officer indicated that in the 13 months the Veteran had been on board, he was a constant disciplinary problem, from disobedience to assault on his shipmates. It was reported that the Veteran had been counseled on innumerable occasions, however, he continued to carry on in a belligerent and provoking manner. The Commanding Officer strongly recommended the Veteran to be separated from the Naval Service as expeditiously as possible. Service treatment records do not show complaints, treatment or diagnosis of a psychiatric disorder or an instance of MST. VA treatment records as early July 2003 show the Veteran was diagnosed with alcohol dependence, NOS unspecified. In July 2003, the Veteran is shown to have alcohol dependence. The Veteran reported physical abuse by his step mother and father, which caused bruising. His father was an alcoholic and his mother abandoned him as a young child. A treatment note from October 2004 similarly shows the Veteran was diagnosed with alcohol dependence and mood disorder due to alcohol and ruled out a primary psychiatric problem. Within an April 2017 statement, the Veteran reported having symptoms of anxiety depression, emotional numbing, flashbacks, heavy use of alcohol and the use of medication for mental conditions. In a June 2017 VA examination, the Veteran was determined to have severe alcohol use disorder, unspecified depressive disorder, and PTSD. The VA examiner commented that records suggest unspecified depressive disorder had been present since childhood, but that he had been drinking alcohol continuously, so a substance induced depressive disorder couldn’t be ruled out. Regarding PTSD, the VA examiner noted that the Veteran was reporting numerous symptoms of PTSD, and attributed this to military sexual trauma, but the examiner did not see objective evidence of a marker in his available records, and there was significant inconsistencies in his report of facts during the VA examination versus statements documented in previous treatment notes. Upon interview of the Veteran, the Veteran did not report any mental health contact before or during the military, and idealized his childhood, but the VA examiner indicated that his VA treatment records clearly document a history of traumatic rejection and abuse in childhood, and depression “as long as he can remember from childhood.” The Veteran also indicated that in service while stationed in the Philippines, he put his belongings in a trash bag and left the ship. He was eventually caught and put in the barracks for a couple days. He reported that the yeoman who dealt with the captain’s paperwork called him in and told him that if he “. . .performed sex…” he would make the charges go away. The Veteran said that the sexual assault occurred but had difficulty talking about it during the examination. The VA examiner indicated that they did not see the specific evidence in the record to provide the marker of in-service sexual assault because only the Veteran's DD-214, out of all his military records, was associated with the claims file. Regarding post-service trauma, the VA examiner noted that the Veteran did not appear to be dealing with life stressors such as multiple divorces, financial problems, family turmoil, his sister committing suicide, his brother being murdered, being disowned by his mother at his sister’s funeral and an on-the-job injury causing chronic disability that apparently took him out of the workforce. The June 2017 VA examiner opined that the Veteran’s diagnosed PTSD, unspecified depressive disorder and severe alcohol use disorder was less likely than not due to military sexual trauma, as there was insufficient medical record evidence of markers to support that the current diagnoses are due to military sexual trauma. The VA examiner did note that the Veteran’s presentation during the examination is consistent with an individual who has been assaulted, however, the examiner could not find a marker within personnel records. The examiner further indicated that it was less likely than not that severe alcohol use disorder and unspecified depressive disorder were secondary to PTSD, and it would be mere speculation to link these diagnoses. Upon association and review of the Veteran’s military personnel records and service treatment records, the June 2017 VA examiner supplied an addendum opinion, in which he opined that diagnosed severe alcohol use disorder and unspecified depressive disorder were less likely than not related to an in-service stressor event. The examiner reasoned that the Veteran has a strong history of substance abuse and pre-military traumas which more likely than not contributed to his pathology. In his record, it is indicated that his mother abandoned the family’s babies, his father and stepmother severely physically abused him causing bruises, that he was neglected and did not have food at times, and he was mentally abused with an alcoholic father. In the June 2017 VA examination, the Veteran was tearful when discussing his childhood, with clear evidence of depression before the military. In July 2019, the Veteran was afforded a VA contracted examination, in which the examiner determined the Veteran did not have a diagnosis of PTSD but had a diagnosis of major depressive disorder. Upon interview, the Veteran indicated that he had a normal childhood, which contradicted with his prior reports of depression during childhood. During the examination, the Veteran’s speech was clear with appropriate volume and rate, except when discussing the stressor, when his voice rose in volume and rate, with dramatic emphasis on key words. The Veteran stated that he woke up after 40 years to remember that the in-service sexual assault had occurred. More specifically, he stated that three years prior, he woke up and it just “blew up like electrical wiring not right.” He described the assault, in that the yeoman took the Veteran to his home where his wife and children were and led him to the bedroom, where they engaged in sexual activity. The examiner indicated that the Veteran was unable to provide details about leaving the bedroom and any interaction with the yeoman’s family. The VA examiner indicated that while the incident was to have occurred just prior to the Veteran’s discharge, the Veteran’s behavior prior to the incident, such as excessive drinking, physical aggression and disregard for authority continued after the Veteran’s discharge and does not support that his maladaptive behavior was in response to MST. Additionally, while the Veteran’s claimed assault met criteria for a PTSD diagnosis, other minimal criteria were not met. Discrepancies in records and the veteran’s reports limit his credibility as a reliable historian. The VA examiner opined that the Veteran’s account along with his behaviors during the examination do not support the occurrence of sexual assault. Within a June 2019 medical opinion, the VA contracted psychologist found that the Veteran did not meet the criteria for a diagnosis of PTSD as there was no objective data found in the Veteran’s records to suggest the existence of PTSD, under the DSM-IV or DSM-V, prior to, during or following military service. The examiner opined that diagnosed depression clearly and unmistakably did not preexist the Veteran’s service, and therefore, the disorder was clearly and unmistakably not aggravated by service. Further, the examiner found that the evidence of record, the Veteran’s own lay statements and service records do not corroborate the claim that a personal assault occurred in service. In-service personnel records show the Veteran’s September 1973 possession of a dangerous weapon and assault, an October 1974 breach of peace and a December 1974 absence. The examiner found that within the Veteran’s June 2017 stressor statement, the Veteran reported that he had “worked hard for many years to keep it [(the assault)] suppressed” and also that “I recently acknowledged that I suffered MST while in the US Navy when being interviewed by an employee at the VA CBOC in Long View, Texas.” However, the examiner found this to contradict the statement he made within the June 2017 examination, in which he asserted that he did not remember the incident until he awoke one night three years ago with it clearly in his memory. Additionally, the examiner found that the Veteran was not forthcoming with details about the claimed assault within the July 2017 examination, stated that he did not remember certain details, and that his behaviors during the retelling appeared to be feigned drama and less than genuine. Private psychotherapy treatment notes dated September 2019 show the Veteran reported that his memory of MST resurfaced in 2016, and he couldn’t understand why they came about suddenly. The private licensed social worker diagnosed the Veteran with PTSD, depression and major depressive disorder, single episode, mild. During the Veteran’s next session in September 2019, the social worker denoted that the Veteran felt overwhelmed by the memory of MST and that he felt like an electrical shock goes through his body, and gets him to shake and cry as a result. In an October 2019 note, the Veteran was able to provide some detail about his MST, however, was tearful and had feelings of guilt and shame. The Board finds that the Veteran does not have currently diagnosed PTSD related to a verified in-service stressor, to include military sexual trauma. While a September 2019 private licensed social worker and June 2017 VA examiner both diagnosed the Veteran with PTSD, the claimed in-service MST has not been corroborated by the evidence of record or other credible supporting evidence. The Veteran has contended that while in service, he was bribed by the yeoman aboard the USS Kansas City, who said he would give rid of the Veteran’s paperwork regarding a pending Captain’s Mast in exchange for sexual acts. Service treatment records do not document an instance of MST, or show complaints, treatment or diagnoses indicating MST. While military personnel records include a December 1974 memorandum from the Commanding Officer, USS Kansas City, to the Chief of Naval Personnel, which recommended discharge of the Veteran by reason of unfitness, the records do not also show that the Veteran experienced MST. The Board finds that the Veteran is competent to recall incidents that occurred during service, to include MST, however, the Board finds probative VA medical opinions of record which do not find the Veteran to be a credible historian. While the June 2017 VA examiner indicated that the Veteran’s presentation during the examination is consistent with an individual who has been assaulted, the examiner could not find a marker within personnel records and found that there were significant inconsistencies in his report of facts during the VA examination versus statements documented in previous treatment notes. Further, the June 2019 VA medical opinion of record found that discrepancies in the record and the Veteran’s reports limited his credibility as a reliable historian of his MST. Specifically, the examiner found the Veteran’s June 2017 stressor statement, in which he reported remembering his MST during an interview by a VA employee, contradicts the statement he made within the June 2017 examination, in which he asserted that he did not remember the incident until he awoke one night three years ago with it clearly in his memory. Further, the VA examiner indicated that while the incident was to have occurred just prior to the Veteran’s discharge, the Veteran’s behavior prior to the incident, such as excessive drinking, physical aggression and disregard for authority continued after the Veteran’s discharge and does not support that his maladaptive behavior was in response to MST. The examiner concluded that the Veteran’s account, along with his behaviors during the examination, did not support the occurrence of sexual assault. The Board thus finds that a diagnosis of PTSD is not supported by the evidence of record. While the June 2017 VA examiner diagnosed the Veteran with PTSD, the Board, within this decision, has found the Veteran’s in-service stressor unverified. See Wood, 1 Vet. App. at 190 (The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts). The Board finds most probative the June 2019 VA examiner’s opinion that the Veteran did not have a diagnosis of PTSD under the DSM-V criteria. Specifically, the examiner did not find that a verified stressor contributed to a PTSD diagnosis, and also found that other criteria were not met, such as avoidance of stimuli. The Board finds this VA medical opinion probative as it is well reasoned, based off an interview with the Veteran and a thorough review of the Veteran’s claim’s file. Therefore, the Board finds that the Veteran does not have diagnosed PTSD which is related to a verified in-service stressor. Finally, the Board finds that currently diagnosed depression and major depressive disorder were not incurred in or caused by active service. Service treatment records do not show complaints, treatment or diagnoses of depression or major depressive disorder. VA treatment records show the Veteran was first diagnosed with a compensable psychiatric disorder in October 2004, many decades after service separation. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Additionally, the June 2017 and June 2019 VA examiners both concluded that diagnosed depression was less likely than not incurred in or caused by active service, citing to the length of time between discharge and medical assistance for a mental health issue. Therefore, the Board finds that depression was not incurred in or caused by active service. Insomuch as the Veteran has been diagnosed with alcohol dependence, direct service connection for disability resulting from a veteran’s own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Thus, the Board finds that service connection is not warranted for the diagnosed substance abuse disorder. Based on the above analysis, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Because the preponderance of the evidence is against claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). 2. Entitlement to a TDIU TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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) (2017). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a) (2017). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b) (2017). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). 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. 38 C.F.R. § 4.16 (a) (2017). For a veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2017). For the entire rating period on appeal, the Veteran did not have one disability rated at 40 percent or more with a combined disability rating of 70 percent or more. The Board notes that the Veteran is service-connected for bilateral hearing loss, rated as 50 percent; residuals of a right-hand fracture, rated as noncompensable; and for tinnitus, rated as 10 percent disabling. The combined rating is 60 percent. Therefore, entitlement for a TDIU must be considered under the criteria set forth in 38 C.F.R. § 4.16 (b). For the entire rating period on appeal, the Board finds that referral to the Director of Compensation Services for consideration of a TDIU under section 4.16(b) is not warranted. In the Veteran’s June 2017 Application for Increased Compensation Based on Unemployability, the Veteran reported that his disability affected his full-time employment in April 2003, the date in which he last worked full-time and became too disabled to work. The Veteran’s previous employment had been as a maintenance work from June 1994 to June 1998, and as a roll operator from July 1998 to April 2003. Within a June 2017 VA physiatric examination, the Veteran reported that he had last worked as a mill worker that rolled out steel and that he had an on-the-job injury, in which he received workers compensation and Social Security benefits. He indicated that his supervisor hit him in the back of the head, injuring his neck and back, and hasn’t attempted to find work since. He exclaimed that he cannot seek employment because of his back. He also reported that in his prior job, he had no trouble except for a layoff but was later rehired. Records from the Social Security Administration show the Veteran was in receipt of benefits as of April 2003 due to a primary diagnosis of disorders of the back. The Veteran did not have a listed secondary diagnosis. The Board finds that during the entire rating period on appeal, the Veteran was limited in performing physical labor due to his non-service connected disabilities, namely a back disability the Veteran incurred on-the-job after separation from service. The evidence of record does not show the Veteran has reported his inability to work due to any service-connected disabilities. The evidence does not otherwise indicate significant occupational impairment due to the Veteran’s service-connected disabilities and does not reflect an unusual or exceptional disability picture due to his service-connected disabilities to warrant referral for consideration under 38 C.F.R. § 4.16 (b). There is nothing in the record to show that the Veteran’s service-connected disabilities alone cause impairment with employment over and above that which is contemplated in the assigned schedular ratings in this case. To the extent the service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected disabilities, either singly or combined, prevented him from securing or following any substantially gainful employment, the Board finds that referral for extraschedular consideration is not appropriate, and a TDIU rating is not warranted for the entire rating period on appeal. 38 C.F.R. § 4.16 (b) (2018). Because the preponderance of the evidence is against claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek, 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.