Citation Nr: 20071981 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 11-27 977 DATE: November 6, 2020 ORDER Service connection for chronic fatigue syndrome, or fatigue as a manifestation of an undiagnosed illness based on service in the Persian Gulf, is denied. An initial rating higher than 10 percent for tension-type headaches is denied. An initial rating higher than 70 percent for posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive-compulsive disorder is denied. A total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran’s fatigue is not a manifestation of a medically unexplained chronic multisymptom illness (MUCMI) without conclusive pathophysiology or etiology, including chronic fatigue syndrome, or a manifestation of an undiagnosed illness. 2. The Veteran’s headaches are not manifested by prostrating attacks occurring on average more than once every two months. 3. The Veteran’s PTSD, major depressive disorder, and obsessive-compulsive disorder has not caused total occupational impairment, or been manifested by symptoms matching or equivalent in severity to the symptoms listed for a 100-percent rating under the General Rating Formula for Mental Disorders. 4. The Veteran has had a substantially gainful occupation or been a full-time student for most of the period under review. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome or fatigue as a manifestation of an undiagnosed illness or MUCMI have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.88a. 2. The criteria for an initial rating higher than 10 percent for tension-type headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria for an initial rating higher than 70 percent for PTSD, major depressive disorder, and obsessive-compulsive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130, Diagnostic Code 9411. 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had an honorable career in the United States Air Force, serving on active duty from June 1989 to July 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Board granted a 10-percent rating for the Veteran’s headaches. It remanded the issue of entitlement to a rating higher than 10 percent for the Veteran’s headaches, and the other matters on appeal, for further development. In an April 2017 decision, the Board, in relevant part, granted an initial rating of 70 percent for the Veteran’s psychiatric disorder for the period prior to March 25, 2015, and denied a rating higher than 70 percent for the entire period under review. It also denied an initial rating higher than 10 percent for headaches and service connection for chronic fatigue syndrome. In a March 2018 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR), and remanded the above matters to the Board for action consistent with the terms of the joint motion. The Board then remanded the matters for further development in October 2018. The Board finds that the Veteran’s claim for chronic fatigue encompasses the claim for service connection for obstructive sleep apnea. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record); see also Delisio v. Shinseki, 25 Vet. App. 45, 54-55 (2011). In this regard, the claim is not limited to the issue of whether he has chronic fatigue syndrome, but whether he has a disability manifested by fatigue for which service connection may be established. As a lay person in the field of medicine, he cannot be expected to identify an appropriate diagnosis with respect to such symptoms of his own accord. See Clemons, 23 Vet. App. at 5; see also Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Indeed, he was not diagnosed with obstructive sleep apnea until April 2012 when he underwent a sleep study for the first time, which is several years after filing his February 2009 claim for fatigue. The record clearly shows that his obstructive sleep apnea is a significant cause of his fatigue. See December 2019 VA Examination Reports. Thus, although he did not appeal the denial of service connection for sleep apnea in the September 2014 rating decision, the Board finds that this issue is nevertheless within its jurisdiction via the appeal of service connection for chronic fatigue. See Clemons, 23 Vet. App. at 5; Delisio, 25 Vet. App. at 54-55. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link (“nexus”) between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Chronic Fatigue Syndrome The Veteran claims service connection for chronic fatigue. See February 2009 VA Form 21-526. The issue addressed in this decision is whether he has chronic fatigue syndrome or an undiagnosed illness manifested by fatigue. For the following reasons, the Board finds that service connection for chronic fatigue syndrome, or for an undiagnosed illness manifested by fatigue is not established. The issue of entitlement to service connection for obstructive sleep apnea, which the medical evidence shows is a significant cause of his fatigue, is being remanded for further development, as discussed below. Because the Veteran had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e); 38 C.F.R. § 3.2(i) (providing that the Persian Gulf War began on August 2, 1990 and will continue until the date prescribed by Presidential proclamation or law). Compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses (MUCMI) to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability: (i) became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability for purposes of 38 C.F.R. § 3.317 means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; or (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) a new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition; (ii) low grade fever; (iii) nonexudative pharyngitis; (iv) palpable or tender cervical or axillary lymph nodes; (v) generalized muscle aches or weakness; (vi) fatigue lasting 24 hours or longer after exercise; (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state); (viii) migratory joint paints; (ix) neuropsychological symptoms; (x) sleep disturbance. 38 C.F.R. § 4.88a. The Veteran has not been diagnosed with chronic fatigue syndrome. The service treatment records show that in March 2008 he reported feeling extremely fatigued. He was diagnosed with viral syndrome and possible depression. A November 2006 post-deployment health assessment reflects that he had problems sleeping or still feeling tired after sleeping. In February 2009, while still on active duty, he filed a formal claim (VA Form 21-526) for service connection for chronic fatigue through the VA Benefits Delivery at Discharge Program. In connection with that claim, he underwent a comprehensive examination at VA in March 2009. According to the examination report, he stated that he always felt sluggish and tired, and that these symptoms began in 2003. He was diagnosed with chronic fatigue. The examiner stated that there was no pathology or etiology to render a diagnosis, as there were only subjective reports of fatigue. The Veteran retired from active service in July 2009. Post-service private treatment records reflect that in April 2012, he was seen for a sleep study to evaluate his chronic fatigue and determine whether he had sleep apnea. In this regard, he complained of daytime sleepiness, frequent awakenings, restless sleep, difficulty initiating sleep, and difficulty maintaining sleep. He stated that his symptoms began eight years earlier and had progressively worsened. He had not undergone a sleep study in the past. Based on the sleep study, he was diagnosed with obstructive sleep apnea. The Veteran underwent another sleep study at a private facility in December 2012, and was again diagnosed with obstructive sleep apnea based on that study. He was advised to use a CPAP machine. The VA treatment records show that he was issued a CPAP machine in April 2013. A VA examination was performed in March 2015 to assess the Veteran’s fatigue. The examiner found that the Veteran had never been diagnosed with chronic fatigue syndrome. According to the examination report, the Veteran stated that he noticed his fatigue in 2000. He reported feeling tired all the time and having non-restful sleep since 2000. The examiner noted that the Veteran had nonexudative pharyngitis, generalized muscle aches or weakness, neuropsychological symptoms, and sleep disturbance. He did not have other signs or symptoms attributable to chronic fatigue syndrome. The examiner concluded that the Veteran displayed some symptoms of chronic fatigue, but that the diagnostic criteria for a diagnosis of chronic fatigue syndrome were not met. Further, the examiner noted that the Veteran had other medical and psychiatric conditions that could contribute to his fatigue, and also took medications that could contribute to fatigue. The examiner found that the Veteran’s symptoms were subjective only and that objective examination was normal. The Veteran underwent another VA examination to determine whether he had chronic fatigue syndrome in December 2019. According to the examination report, he stated that he felt tired all the time since 1999. He described a disruptive sleep pattern during service due to working odd hours, which he felt contributed to his fatigue. However, he was now working normal hours and his fatigue had not improved. He stated that his sleep was interrupted by “stopping breathing” and “PTSD issues.” He estimated getting an average of six hours of sleep at night with frequent daytime napping. He reported being diagnosed with obstructive sleep apnea a few years earlier, but not been able to tolerate the use of his prescribed CPAP machine. He had no problems with pharyngitis, lymph node enlargement, exercise intolerance, or migratory joint or muscle pains. After reviewing the claims file and medical records, and examining the Veteran, the examiner concluded that the Veteran did not meet the clinical criteria for a diagnosis of chronic fatigue syndrome. The examiner found that the Veteran’s diagnosed sleep apnea and PTSD accounted for his symptoms. By the same token, the examiner found that the Veteran did not have an undiagnosed or unexplained illness. The Veteran also underwent a VA Gulf War general examination in December 2019, conducted by the same physician who performed the chronic fatigue syndrome examination discussed in the preceding paragraph. The examiner found that the Veteran did not have an undiagnosed illness or MUCMI; rather, the Veteran’s symptomatology was consistent with his medically documented and diagnosed conditions of PTSD and obstructive sleep apnea. The examiner concluded that it is less likely than not that the Veteran’s claimed disability was related to environmental exposures during his service in the Persian Gulf. The preponderance of the evidence shows that the Veteran has not had an MUCMI such as chronic fatigue syndrome. In particular, there has not been an exclusion by history, physical examination, and laboratory tests of all other clinical conditions that may produce symptoms similar to the Veteran’s fatigue. See 38 C.F.R. § 4.88a. Rather, as found by the December 2019 VA examiner, the Veteran’s symptoms are accounted for by his diagnoses of obstructive sleep apnea and PTSD. The VA examiner’s opinion is probative, as it represents the conclusion of a medical professional based on review of the Veteran’s medical history and examination of the Veteran, and is supported by an explanation sufficient to make a fully informed decision. Indeed, it is consistent with the earlier records showing that the Veteran’s fatigue is attributable to sleep apnea and sleep impairment associated with his psychiatric disabilities. By the same token, and as found by the December 2019 VA examiner, because the Veteran’s diagnosed PTSD and obstructive sleep apnea account for his symptoms, the probative evidence shows that his fatigue is not a manifestation of an undiagnosed illness, which is the issue that the JMPR instructed the Board to address on remand. See 38 C.F.R. § 3.317. Because the Veteran’s fatigue is not a sign or symptom of an undiagnosed illness or MUCMI such as chronic fatigue syndrome, it does not constitute a qualifying chronic disability eligible for service connection under the provisions of 38 C.F.R. § 3.317 based on the Veteran’s Persian Gulf service. To the extent the Veteran’s fatigue is due to his service-connected psychiatric disorder, service connection for that disability has already been established. Chronic sleep impairment is a symptom contemplated in the evaluation assigned under the rating criteria. See 38 C.F.R. § 4.130, General Rating Formula. To the extent the Veteran’s fatigue is due to his obstructive sleep apnea, the Board is remanding the issue of whether service connection may be established for sleep apnea for further development, as discussed in the remand section below. In sum, the criteria for service connection for the Veteran’s fatigue in itself, either as a manifestation of an MUCMI such as chronic fatigue syndrome, or as a sign or symptom of an undiagnosed illness, for purposes of section 3.317 of the regulations, have not been met. Because the preponderance of the evidence weighs against service connection on that basis, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability 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 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).   Evaluation of Tension-Type Headaches The Veteran’s tension-type headaches have been rated by analogy to migraine headaches, and assigned a 10-percent rating under Diagnostic Code (DC) 8100, which pertains to migraines. 38 C.F.R. § 4.124a; see 38 C.F.R. § 4.20 (providing for analogous ratings). Under DC 8100, a 50-percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30-percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; a 10-percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months; and a noncompensable (0-percent) rating is assigned for less frequent attacks. Id. The criteria under DC 8100 are successive, meaning that each disability level builds on the one before in terms of duration and frequency, and thus requires that a veteran rated at a higher level satisfy all of the requirements of the lower levels. Johnson v. Wilkie, 30 Vet. App. 245, 247 (2018). Accordingly, the provisions of 38 C.F.R. § 4.7 and 38 C.F.R. § 4.21 do not apply in evaluating headache disorders under DC 8100. See id. Diagnostic Code 8100 does not define “economic inadaptability.” The Court has held that under DC 8100, a headache disorder need only be “capable of producing” economic inadaptability, and that this standard is different from the “unemployability” standard applicable in the context of determining entitlement to a total disability rating based on individual unemployability (TDIU). Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004); see 38 C.F.R. §§ 3.340, 4.16 (setting forth the requirements for establishing entitlement to TDIU). The term “prostrating” under DC 8100 is also not defined. In its Adjudication Procedures Manual, the Veterans Benefits Administration (VBA) defines “prostrating” for purposes of applying DC 8100 as “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” VBA Manual M21-1, III.iv.4.G.7.b. “Completely prostrating” is defined as “extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities.” Id. While these definitions are not binding on the Board, they offer persuasive guidance, and the Board is not aware of any alternative definition or interpretation of this term as used in DC 8100. See Overton v. Wilkie, 30 Vet. App. 257, 263 (2018); Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102, 1108 (Fed. Cir. 2017); see 38 C.F.R. § 19.5. The Court has similarly noted in a non-precedential memorandum decision, in reference to DC 8100, that the term “prostration” has been defined by Dorland’s Medical Dictionary as “extreme exhaustion or powerlessness.” Felder v. McDonald, 2016 WL 1295022 (April 1, 2016). Shortly before the Veteran’s retirement from active service, he attended a VA general examination in March 2009 as part of the VA Benefits Delivery at Discharge Program. The examination report reflects that the Veteran experienced four to five headaches per week. They were not associated with nausea or vomiting. He had photophobia associated with the headaches, but no other significant visual disturbances. He denied any significant functional or activity limitations due to his headaches. He was assessed with tension-type headaches, recurring. He did not have classic migraine headaches, according to the examiner. The Veteran also underwent a March 2009 psychiatric examination conducted at an Air Force facility. The examination report reflects that the Veteran rated his headaches a 4 to 5 in severity, on a scale of 1 to 10, and stated that they occurred two to three times a week while on medications. A February 2013 VA treatment record reflects that the Veteran was having increased headaches at work due to stress. An April 2015 VA examination report reflects that the Veteran complained of intense, throbbing, dull headaches that occurred every other day and lasted two to three hours on good days and up to twenty hours on bad days. His symptoms included pulsating or throbbing head pain; pain on both sides of his head; nausea; and sensitivity to light. Typically, his head pain lasted less than one day. He did not have any prostrating attacks of migraine headache pain. He had prostrating attacks of non-migraine pain that occurred once every two months. The examiner also checked the “yes” box for very frequent prostrating and prolonged attacks of non-migraine headache pain. However, as the examiner specified that the Veteran’s prostrating attacks occurred once every two months, it is clear that this was either a typographical error, or that the examiner believed that a prostrating attack occurring once every two months equated to “very frequent prostrating and prolonged attacks.” Regarding the functional impact of the Veteran’s headaches, he related that he was a full-time student, but had previously lost two to four weeks of work in a year. He stated that the frequency of his headaches interfered with concentration, and contributed to his fatigue. He was now a full-time student, but earlier that year was working and had missed work “quite a bit.” The Veteran underwent another VA examination to evaluate his headaches in December 2019. The examination report reflects that the Veteran related having headaches on an average of two to three times per week, but sometimes up to four to five times per week. The headaches lasted thirty minutes to a couple of hours, but also had lasted up to two days. He rated their severity as a 6 to 7 out of 10. He took Ibuprofen, which provided relief sometimes. Increased emotional stress seemed to trigger the headaches. The examiner found that the Veteran’s headache pain consisted of constant head pain, pulsating or throbbing head pain, and pain on both sides of the head. Other symptoms included sensitivity to light. The typical duration of headache pain was less than one day. The examiner found that the Veteran did not have characteristic prostrating attacks of headache pain. The Veteran reported missing forty to sixty hours of work over the past year due to his headaches. The Board finds that that the Veteran’s headaches have not been manifested by characteristic prostrating attacks occurring on average more than once every two months during the period under review. The March 2009 VA examination report reflects that the Veteran denied any significant functional or activity limitations due to his headaches. The April 2015 VA examination report reflects that the Veteran related having headaches every other day that generally lasted two to three hours at a time, although they could last up to twenty hours. The examiner found that prostrating attacks occurred once every two months. As explained above, although the examiner also checked the box for very frequent and prolonged prostrating attacks, this was likely an error since it conflicts with the specific finding that the prostrating attacks occurred once every two months. Alternatively, it may have represented the examiner’s interpretation that prostrating attacks occurring once every two months equates to very frequent and prolonged attacks. However, that is a legal finding and not a medical judgment. In this regard, the rating criteria under DC 8100 establish that very frequent and prolonged attacks represent a different disability level than prostrating attacks occurring once every two months. Thus, for purposes of applying DC 8100, the Board finds that the Veteran’s prostrating attacks have occurred no more than once every two months, and are not very frequent and prolonged. Notably, the December 2019 VA examiner considered the Veteran’s report of symptoms that are more or less identical to what he reported at the April 2015 examination in terms of frequency, duration, and severity, but did not find the Veteran’s headaches to be prostrating in nature. Apart from the April 2015 VA examiner’s indication that the Veteran had prostrating attacks occurring once every two months, the evidence does not otherwise show that the Veteran’s headaches have caused “extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities, ” or “extreme exhaustion or powerlessness” occurring on average more than once every two months. See VBA Manual M21-1, III.iv.4.G.7.b; Felder, 2016 WL 1295022 (April 1, 2016) (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY). Accordingly, as the Veteran’s headaches have not been manifested by prostrating attacks occurring on average at least once a month, let alone very frequent completely prostrating and prolonged attacks, during the period under review, the criteria for a rating higher than 10 percent under DC 8100 have not been met. Because the Board finds that the Veteran’s headaches have not been manifested by very frequent completely prostrating and prolonged attacks, the issue of whether they have produced or are capable of producing severe economic inadaptability is moot. See 38 C.F.R. § 4.124a, DC 8100; Johnson, 30 Vet. App. at 247. As the preponderance of the evidence is against a rating higher than 10 percent for the Veteran’s headaches, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Evaluation of PTSD, Major Depressive Disorder, and Obsessive-Compulsive Disorder For the following reasons, the Board finds that the criteria for an initial rating higher than 70 percent for the Veteran’s service-connected psychiatric disorder have not been met. A. Rating Criteria The Veteran’s PTSD, major depressive disorder, and obsessive-compulsive disorder is rated under Diagnostic Code (DC) 9411-9434. 38 C.F.R. § 4.130. Diagnostic Code 9411 pertains to PTSD, and DC 9434 pertains to major depressive disorder. Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, a 10 percent disability rating requires: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent disability rating requires: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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 affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting; inability to establish and maintain effective relationships.) A 100 percent disability rating requires: 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 symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-V). Id. at 443; see 38 C.F.R. § 4.130. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must 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; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b).   B. Analysis The Veteran underwent a psychiatric examination in March 2009 at an Air Force facility. The examination report reflects that he was well-groomed with good hygiene, and dressed in casual clothing. He cooperated well with the examiner, and rapport was established with moderate ease. He was alert and oriented in all three spheres. His immediate, recent, and long-term memory were grossly intact. His thought processes were logical and coherent. He denied any hallucinations or delusions. There were no psychotic features evident. He denied any current suicidal or homicidal ideation. The Veteran’s June 2013 application for increased compensation based on unemployability (VA Form 21-8940) reflects that he had been working full time since June 2010, and continued to be working forty hours per week when he filed the application. The April 2014 VA examination report reflects the examiner’s finding that the Veteran’s psychiatric symptoms for rating purposes consisted of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, and suicidal ideation. With regard to occupational and social impairment, the examiner found that the Veteran’s psychiatric symptoms caused an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The March 2015 VA examination report reflects the examiner’s finding that the Veteran’s psychiatric symptoms for rating purposes consisted of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. With respect to occupational and social impairment, the examiner found that the Veteran’s psychiatric disorders caused occupation and social impairment with reduced reliability and productivity. An April 2019 VA mental health treatment record reflects that the Veteran enjoyed his job, and there was less stress. A July 2019 VA mental health treatment record reflects that the Veteran was employed. He had some days that were good and some days that were bad. He felt tired, had low energy, low motivation, poor sleep, and felt depressed. He was adequately groomed, had good hygiene, and casually dressed. His thought process was logical and goal directed. The January 2020 VA examination report reflects the examiner’s findings that for rating purposes the Veteran’s psychiatric symptoms consist of depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. On examination, the Veteran was casually dressed and adequately groomed. His speech rate, tone, and prosody were within normal limits. He maintained good eye contact. He denied hallucinations, and there was no evidence of delusions or disorganized thought process. He also denied suicidal or homicidal ideation, plans, or intent. His affect was flat, and he appeared depressed. His gross cognition appeared intact. The examiner found that the Veteran’s symptoms caused reduced reliability and productivity. The examination report reflects that the Veteran was employed. The above evidence shows that the Veteran has not had symptoms matching, or equivalent in severity to, the symptoms listed for a 100-percent rating, including having gross impairment in thought processes or communication, persistent delusions or hallucinations, exhibiting grossly inappropriate behavior, posing a persistent danger of hurting himself or others, having an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, being disoriented to time or place, or having memory loss for names of close relatives, own occupation, or his own name. See 38 C.F.R. § 4.130. Rather, all of his psychiatric symptoms are explicitly listed in the criteria for a rating of 70 percent or lower in the General Rating Formula. Thus, by definition, they are not equivalent in severity, frequency, and duration to the symptoms listed in the criteria for a 100-percent rating. Moreover, and in the alternative, the Veteran’s psychiatric symptoms have not caused total occupational impairment, as the record shows he has been gainfully employed for most the period under review, including as recently as January 2020, as reflected in the January 2020 VA examination report. When he was not working, he was in school full time. The VA examiners have not found the Veteran’s psychiatric symptoms to cause total occupational and social impairment, but rather functional impairment corresponding to a 50-percent rating or lower. See 38 C.F.R. § 4.130. Accordingly, because the Veteran’s service-connected psychiatric disorders have not been manifested by symptoms matching or equivalent in severity, frequency, and duration to the symptoms listed for a 100-percent rating, and because he does not have total occupational impairment due to his psychiatric symptoms, the criteria for a 100-percent rating have not been met. See id. Because the preponderance of the evidence is against a rating higher than 70 percent for the Veteran’s PTSD, major depressive disorder, and obsessive-compulsive disorder, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TDIU For the following reasons, the Board finds that the preponderance of the evidence weighs against unemployability for TDIU purposes. A. Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist 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. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must fully consider “the effect of combinations of disability” in its determination, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.1 (a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found unemployable due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). B. Analysis The percentage requirements for schedular entitlement to TDIU are satisfied, as the Veteran’s service-connected PTSD has been assigned a rating of 70 percent throughout the period under review; in addition, his combined disability rating has been 90 percent since his retirement from active service. See 38 C.F.R. § 4.16(a). In Ray v. Wilkie, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component “simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.” 31 Vet. App. 58, 72-73 (2019). As for the “noneconomic component,” the Court held that this refers to the individual claimant’s “ability to secure or follow” an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran’s occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a “checklist that must be completely run through in every case,” and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the veteran’s limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the veteran’s limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Here, regarding the economic component, the record shows that the Veteran has been gainfully employed for most of the period under review. His June 2013 application for increased compensation based on unemployability (VA Form 21-8940) reflects that he had been working full time since June 2010, and continued to be working forty hours per week when he filed the application. VA treatment records dated in 2019, and the January 2020 VA psychiatric examination report, also reflect that the Veteran was working. The record shows that in 2014 and 2015, when he was not working, he was in school full time. There is no indication that his employment has been marginal in nature, either on the basis of income at or below the poverty level or because the work was in a protected environment such as a family business or sheltered workshop. See 38 C.F.R. § 4.16(a). The Veteran’s substantially gainful employment, and full-time status as a student for the period of time he was not working, are incompatible with a finding of unemployability. Accordingly, the Board finds that the criteria for TDIU have not been met. See 38 C.F.R. § 4.16. Because the preponderance of the evidence is against unemployability, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea is remanded. The medical evidence clearly shows that the Veteran experienced an onset of fatigue during service that has continued ever since. He retired from active service in July 2009, and filed a claim shortly before his retirement for chronic fatigue. See February 2009 VA Form 21-526. In April 2012, he underwent a sleep study for the first time due to his symptoms of fatigue, and was diagnosed with obstructive sleep apnea. There seems to be every indication that his symptoms of fatigue during his twenty-year career in the active service may have been a manifestation of sleep apnea that was undiagnosed at the time, since the diagnosis requires a sleep study. However, the Board is not qualified to make that determination of its own accord, as it requires medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). On remand, a VA medical opinion must be obtained addressing the likelihood that the Veteran’s obstructive sleep apnea was incurred in active service. The matter is REMANDED for the following action: 1. Obtain a VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea was incurred in active service, notwithstanding the fact that it was first diagnosed in April 2012 based on a sleep study. He has consistently reported symptoms of fatigue during and ever since his career in the active service, which have been attributed, in part, to his obstructive sleep apnea. As he did not undergo a sleep study until April 2012, the examiner must consider the likelihood that the symptoms of fatigue that manifested during his 20-year service career were due to obstructive sleep apnea that went undiagnosed at the time. If the examiner finds that the Veteran’s obstructive sleep apnea is related to his deviated nasal septum, the examiner is advised that service connection has been established for that condition. Thus, such a finding does not preclude service incurrence, but rather would provide further evidence that his sleep apnea manifested in service. Of course, if for some reason the examiner finds against a direct relationship to service, but determines that the Veteran’s sleep apnea is related to his deviated nasal septum, the examiner must opine whether the deviated nasal septum caused or aggravated the obstructive sleep apnea for purposes of establishing service connection on a secondary basis. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.