Citation Nr: 20021452 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 12-02 117 DATE: March 25, 2020 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran’s service-connected PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week, impairment of short- and long- term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships without occupational and social impairment with deficiencies in most areas or by total occupational and social impairment. 2. The overall evidence of record does not show that the Veteran is unable to maintain or secure substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 50 percent for PTSD have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. Tese matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2018 decision, the Board granted a 50 percent rating for the Veteran’s PTSD and denied the claim for a TDIU. The Veteran subsequently appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In a August 2019 Joint Motion for Partial Remand and Order (JMR), the Court vacated the Board’s June 2018 decision and remanded the claims to the Board for further adjudication. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran’s service-connected PTSD has been rated under Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 50 percent rating is warranted if the Veteran experiences occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. Id. The symptoms listed in VA’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). 1. Entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran asserts that PTSD is worse than what is contemplated in the assigned 50 percent rating. In a January 2020 submission, the Veteran’s attorney argued that the Veteran was entitled to at least a 70 percent rating for the entire appeal period due to such symptoms as hallucinations, impaired impulse control, obsessional rituals, concentration and memory impairment, isolative tendencies, anger and an inability to interact appropriately with others. A November 2008 intake record shows that the Veteran was diagnosed with moderate symptoms of PTSD. At the time, the Veteran reported concerns with depression, anxiety, anger, isolation, flashbacks, nightmares, hypervigilance, insomnia, and trust issues. The examiner noted that the Veteran’s memory function was normal, his judgement was fair, his affect was appropriate, and he was oriented to time, place, and person. The examiner noted that the Veteran was receptive to intervention and would be seen for individual and group sessions. A January 2009 mental health note shows that the Veteran experienced moderate depressive symptom, as well as anxiety related to trauma, strongly suggestive of PTSD. The Veteran reported little interest or pleasure, feeling down or hopeless, trouble sleeping, feeling tired/low energy, agitation, disturbing memories and dreams, irritability, nervousness, and being easily startled. The Veteran reported that “depressive symptoms made it somewhat difficult to do [his] work, take care of things at home, or get along with others.” The Veteran denied trouble concentrating, suicidal ideation, psychotic symptoms, and manic symptoms. In May 2009, the Veteran reported “not at all” when asked if he had little interest or pleasure, was feeling down or hopeless, trouble sleeping, tired or low energy, poor appetite or over-eating, feelings of failure or guilt, trouble concentrating, motor retardation or agitation, or suicidal ideation. The May 2009 psychologist stated the severity of the Veteran’s symptoms was mild and that it represented “substantial improvement in symptoms since the start of treatment.” A November 2009 VA examination shows the Veteran reported a startled response, hypervigilance, some difficulty concentrating, extremely irritability, a bad temper, anxiety, inability to tolerate crowds, suspicion, difficulty sleeping, flashbacks, and nightmares. The Veteran reported being in group and individual psychiatric therapy. He reported that he had worked for 35 years in the railroad industry “going from brakeman to engineer to executive.” He reported being in a 30-year marriage and having a good relationship with his parents, siblings, superiors, and coworkers. The Veteran stated that “he [was] not aware of any major changes in social functioning except that he [could not] go into crowds and he avoids[ed]going to new places.” The Veteran reported that “he has become discouraged about his symptoms, but no serious depression.” The VA examiner noted that the Veteran was clean, neat, and appropriately groomed. He exhibited appropriate behavior, good eye contact, and related to the examiner in a pleasant well-motivated manner. His affect was normal, thought content was appropriate, thought process was organized and goal directed, judgment was good, and abstract thinking was well preserved. He showed no evidence of impaired impulse control, suicidal ideation, or homicidal ideation. His remote and recent memory was good; his communication was open and comfortable; his speech was coherent, clear, and well-modulated; and his answers to questions were logical and relevant. The VA examiner found his concentration to be fair, there was no history of panic attacks delusions, hallucinations, and no obsessional rituals. In a November 2011 VA examination for PTSD, the Veteran reported recurrent distressing dreams, avoidance, detachment, hypervigilance, and exaggerated startle response. The Veteran reported being fairly avoidant and intolerant of crowds. He reported that his marriage was ok, that he performed “odd jobs,” and that he assisted his family in limited ways. The VA examiner stated that the symptoms associated with PTSD were depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner conducted an in-person examination, reviewed the claims file, and summarized the functional level of impairment as occupational and social impairment with reduced reliability and productivity. During the June 2013 Board hearing, the Veteran testified that he experienced depression, flashbacks, short-temperedness, and hypervigilance. He testified that he could not tolerate crowds so he goes to a small church and will have no more than 20 people at his home for social gatherings. The Veteran testified that hearing “a helicopter or even sometimes the smell of oriental food…will get [him] to thinking back to where [he] was.” The Veteran stated that at night he wakes up and imagines hearing noises or he hears something that wakes him up which causes him to get up and check his doors, his wife, and his dogs. The Veteran testified that he was having a lot of problems with his memory. He stated that he forgets names and grocery lists and that once, he got lost at night in a place that he had known very well his all of his life. A November 2013 sleep clinic consultation record shows that the Veteran reported “he could not tolerate the [sleep] mask along with nightmares related to active duty (mostly auditory hallucinations).” In a January 2014 VA examination for PTSD, the Veteran reported that he avoids crowds and is suspicious in public. He reported that his marriage was good, his energy was low, and this concentration and memory were fair. He reported that he had trouble sleeping and that he often checked his locks. He denied being depressed, suicidal ideation, panic attacks and irritability. The VA examiner stated that the symptoms associated with PTSD were anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner noted that the Veteran was coherent and logical; he denied suicidal and homicidal ideations; he denied audio and visual hallucinations; and he had good judgment and insight. The examiner conducted an in-person examination, reviewed the claims file, and summarized the functional level of impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. A January 2014 behavioral health note shows that the Veteran was screened for cognitive impairment and was not found to have significant cognitive impairment. The Veteran reported significant depressive symptoms. However, the Veteran denied current memory problems, irritability, headaches, suicidal ideation, symptoms consistent with generalized anxiety disorder or panic disorder, hallucinations or delusions, and manic or hypomanic symptoms. In March 2014, a behavioral health nurse noted that the Veteran reported that it had “been difficult for him to take care of his wife due to being increasingly tired during the day.” The Veteran also reported getting approximately four hours of sleep at night with frequent waking throughout night. He reported that “these issues are new…were not occurring before sertraline medication was introduced to current regimen. [The] Veteran reported these issues have been occurring for “about the past week and a half.” The nurse noted that the Veteran requested that the medication be discontinued, as the Veteran stated that he had not “had any problems with [his] depression and anxiety.” The nurse noted that “he has been attending counseling sessions at the vet center addressing PTSD which has been helping him cope with anxiety and depression.” An August 2015 medical record shows that the Veteran reported nightmares which were sometimes triggered by “watching a battle movie.” In June 2016, during a primary care new patient screening, the Veteran screened negative for depression. When asked if he had little interest or pleasure in doing things and whether he was feeling down, depressed, or hopeless, the Veteran indicated “not at all.” A June 2016 nursing assessment shows that the Veteran indicated that he did not have difficulty coping with situations and that he had no thoughts of suicide. The Veteran was found to be alert, responsive, oriented, and able to understand and follow directions. A July 2016 medical record shows that the Veteran was “alert and oriented, alert, responsive, as appropriate for age, able to understand and follow directions.” A December 2016 physician’s note shows that the Veteran denied mood swings, anxiety, depression, or safety issues. A February 2017 medial record showed that the Veteran was oriented to person, place, and time. In a December 2017 VA examination for PTSD, the Veteran reported that he had a “happy” marriage and he stated that his wife was “supportive.” The Veteran reported that he had a good relationship with his children, grandchildren, and great-grandchildren. The Veteran reported that “he regularly socialize[d] with friends from his church, his cigar club, and other veterans.” The Veteran stated he did not engage in many pleasurable activities such as hunting and fishing, which he used to enjoy. He stated he sold his fishing boat several years ago with the intent to buy a new one, but lost motivation to do so. The VA examiner stated that the symptoms associated with PTSD were depressed mood, and chronic sleep impairment. The examiner noted that the Veteran had not sought therapy for or been hospitalized for any mental health symptoms. The examiner also noted that the Veteran was alert and oriented; he had no abnormalities in attention, concentration, or movement; he had linear, logical, and goal-directed thought processes; he showed no evidence of thought disorder; and he reported no audio or visual hallucinations. The examiner noted that the Veteran’s long and short-term memory were intact. The examiner conducted an in-person examination, reviewed the claims file, and summarized the functional level of impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner stated that the “Veteran was administered the WHODAS 2.0, a measure of impairment in activities of daily living (ADLs). [The] Veteran reported moderate to severe impairment in ADLs related to mobility and memory, which are attributable to the normal aging process and chronic pain. He did not complete the back portion of the survey. However, his functioning in ADLs related to household and participation in society is deemed to be minimally impaired based on clinical interview.” Based on the foregoing, the Board finds that a rating in excess of 50 percent is not warranted for the entire appeal period as deficiencies in most areas or total occupational and social impairment is not shown. With respect to the symptoms indicative of a 70 percent rating, the evidence does not show that the Veteran’s symptoms manifested with the frequency, severity, and duration typically associated with a 70 percent rating, such as, for example, 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 work like setting); inability to establish and maintain effective relationships. The Board acknowledges the lay contentions that symptoms of PTSD included obsessional rituals, concentration and memory impairment, hallucinations, spatial disorientation, impaired impulse control, isolative tendencies, anger, difficulty adapting to stressful circumstances, and an inability to interact appropriately with others. Laypersons are competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran, his wife, the Veteran’s representative, and a vocational rehabilitation counselor are not shown to have the requisite education, experience, and training to determine the level of severity or assess symptoms of PTSD. The Board finds that any additional symptomatology that is not enumerated in the 50 percent rating assigned, such symptoms have not been shown the requisite frequency, severity, and duration to interfere with routine activities as contemplated by the 70 percent or 100 percent rating criteria. The symptoms asserted by the Veteran do not result in occupational and social impairment in most areas. Impairment in the area of mood has been demonstrated as the Veteran consistently reported depression during the appeal period. However, deficiencies in the other areas has not been shown. Impairment in the area of family relations was not shown as the Veteran maintained strong relationships with his wife and extended family members. In a December 2017 VA examination, the Veteran reported that he remained married to his wife of 38 years, that his marriage was happy and that his wife was supportive, that he had good relationships with his adult children, grandchildren and great-grandchildren and that he regularly socialized with friends from his church, cigar club and other veterans. The Veteran described his marriage as good in a January 2014 VA examination report. Impairment in the area of thinking as not shown as the Veteran’s thought processes and content have consistently found to be logical, linear and goal-directed without evidence or finding of a thought disorder. Impairment in the area of judgment was not shown as the Veteran’s judgment was consistently found to be intact and not impaired. He has consistently been found to be functioning generally satisfactorily, with normal routine behavior, self-care and conversation. VA clinical records and examination reports showed no perceptual disturbance such as delusions, mania or psychosis. School or work was not attempted during the appeal period. In addition, the Veteran’s symptoms do not reflect in functional impairments with the frequency, severity, duration which would warrant a higher rating. For example, the Veteran asserts that checking his windows and doors when waking up from nightmares is an obsessional ritual. However, there is no evidence that such a ritual interferes with routine activities. The Veteran did not state that he was unable to go back to sleep afterwards and the Veteran consistently reported several hours of sleep. Moreover, it is not the mere presence of a symptom but rather the effect the symptom has on the Veteran’s functioning. Despite having to check his windows and doors at night, the evidence shows that the Veteran was capable of performing the activities of daily living, and has shown the ability to care for his wife, help his son-in-law on a farm, attend and actively engage in individual and group therapy, keep his health appointments, and actively engage in social activities such as hunting, boating, cigar clubs, and social gatherings at his home. The Veteran’s wife detailed the Veteran’s lack of motivation and interest in an October 2019 statement; however, those functional impairments are explicitly considered in the current rating. The Board notes that the file contains three instances where the Veteran reported possible hallucinations. However, when questioned by several VA examiners, the Veteran consistently denied experiencing any auditory or visual hallucinations, spatial disorientation, and disorientation to time or place. Several medical professionals noted that the Veteran was consistently oriented to time, place, and person; his judgment was consistently been found to be intact or adequate throughout the appeal period; his thought processes and content were consistently found to be intact or without impairment or delusions; he has consistently been found to be functioning generally satisfactorily, with normal routine behavior, self-care and conversation; and medical reports showed no perceptual disturbance such as mania or psychosis. Moreover, the record does not show, and the Veteran has not alleged, that these reported hallucinations were any more than occasional and minor as no impairments related to these hallucinations were reported. Indeed, there are only three reported instances of hallucinations during the appeal period spanning more than a decade. Therefore, the Board finds that the record reflects that the frequency, duration, and severity of these symptoms did not result in persistent delusions or hallucinations, spatial disorientation, or disorientation to time or place as contemplated by a 70 percent rating. The Veteran reported concentration and memory impairments. However, the Board notes that those symptoms of impairment to long and short term memory are fully contemplated in the current 50 percent rating. The evidence shows that the Veteran functioned independently and performed activities of daily living. For example, there is no credible evidence that the severity of his memory problems is such that he cannot remember his own name. Although the Veteran reported one instance of becoming lost on his ranch and that it took 30 minutes to regain his bearings, he has consistently been found to be alert and oriented during the appeal period. One instance of becoming lost or disoriented during the appeal period lasting more than 10 years is not of the severity, duration or frequency that would warrant a higher rating. The Veteran reported difficulty adapting to stressful circumstances and the Veteran’s wife reported that he had difficulty adapting to stressful situations such as traffic in an October 2019 statement. However, his symptoms do not reach the degree required to demonstrate occupational and social impairment with deficiencies in most areas. For example, the Veteran reported being able to help his son-in-law on his farm when “one of his workers had a family emergency,” and the Veteran reported taking care of his wife after her hip replacement. The Veteran reported an inability to tolerate crowds, impaired impulse control, aggression towards strangers, isolative tendencies, anger, and an inability to interact appropriately with others. However, there is no evidence of any injurious behavior, acts of aggression, or legal troubles. The Veteran reported one instance of wanting to hurt another person at the grocery store for being too close to him, he did not report that he had an altercation with this individual. Although the Veteran’s wife reported that he yells and gets upset on a daily basis, he has consistently described their relationship as good and they have maintained a long-term marriage. There has been no indication the Veteran has had homicidal or suicidal thoughts or has been deemed a persistent danger of hurting self or others. The Veteran attended church and he actively participated in individual and group therapy. He reported a good marriage, good relationship with his children and grandchildren, as well as contact with friends from his church, cigar club, and other veterans. His wife also stated that his family and church members assist the Veteran with driving. Despite reported an inability to tolerate crowds and an inability to interact appropriately with others, the Veteran reported that he “regularly socializes with friends from his church, his cigar club, and other veterans.” During the appeal period, the Veteran did not attend school and he retired from work due to a knee disability. Therefore, the Board finds that the record reflects that the frequency, duration, and severity of these symptoms did not result in functional impairments contemplated by a 70 percent rating. The preponderance of the evidence is against a finding that PTSD symptoms resulted in total social impairment as contemplated by the rating criteria for a 100 percent rating, and in so finding, the Board determines that the severity of PTSD symptomatology does not more nearly approximate the level of disability contemplated by a 100 percent rating. A 100 percent rating requires a factual conclusion that the PTSD symptomatology results in both total occupational and total social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board finds that total social impairment is not shown by the evidence of record as the Veteran had been married for over 30 years; he maintained a relationship with his adult children, grandchildren, and great-grandchildren; and he maintained a relationship with church friends. Additionally, none of the Veteran’s PTSD symptoms are similar in severity, frequency, or duration as found necessary for the assignment of a 100 percent rating. The Board notes that in December 2019, a certified rehabilitation counselor opined that PTSD symptoms precluded the Veteran’s ability to complete simple, everyday tasks, including taking care of his personal hygiene such as taking a shower. However, the certified rehabilitation counselor is not shown to possess any expertise in terms of determining the severity of the Veteran’s PTSD symptoms, as the counselor is not a medical professional. The Board notes that the December 2017 VA examiner stated that the Veteran reported moderate to severe impairment in ADLs related to mobility and memory, which are attributable to the normal aging process and chronic pain; and his functioning in ADLs related to household and participation in society is deemed to be minimally impaired based on clinical interview. Therefore, more weight is accorded the clinical findings made by medical professionals who reviewed the claims file and examined the Veteran in-person. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). To date, no medical professional has opined that the Veteran PTSD symptoms result in occupational and social impairment with deficiencies in most area or total occupation and social impairment. VA examiners conducting the Veteran’s mental status evaluations have consistently described the Veteran’s PTSD as having some variation of mild or reduced impact on Veteran’s social and occupational life. To the extent to which the record reflects some symptoms suggestive of a higher rating, the Board has carefully considered them but finds the overall frequency and severity does not more nearly approximate occupational and social impairment, with deficiencies in most areas or total occupational and social impairment. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for an increased rating for PTSD. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, an initial rating in excess of 50 percent, for PTSD is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, 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 effects of combinations of disability. 38 C.F.R. § 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual's particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability). 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 or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 2. Entitlement to a TDIU prior to January 26, 2010 The Veteran seeks entitlement to compensation for a TDIU. He contends that he has not worked substantially gainful employment since May 2009 due to his service-connected disabilities. In a January 2020 statement, the Veteran’s attorney argues that an award of TDIU is warranted as the Veteran was unable to obtain and maintain employment due to his PTSD. The Board notes that, as of September 16, 2019, the Veteran’s stage four non-small cell lung cancer was rated 100 percent disabling. As such, this disability will not be considered in his claim for a TDIU based on his service-connected disabilities because a 100 percent rating represents a maximum benefit based on the disability rating schedule. He is currently awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for a single service-connected disability rated as 100 percent and, additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segment or bodily systems from September 16, 2019. The evidence shows that the Veteran last worked October 2004. In November 2009, the Veteran reported that he worked 35 years in the railroad industry “going from brakeman to engineer to executive.” The Veteran retired “in 2004 after he had a left knee replacement.” The Veteran completed high school and has had more than a year of college training in agriculture. The Veteran reported helping his son-in-law on a farm and in 2015, he reported working in agriculture. Prior to January 26, 2010, the Veteran was service connected for PTSD rated as 30 percent disabling, right shoulder disability evaluated as 20 percent disabling, tinnitus evaluated as 10 percent disabling, and bilateral hearing loss evaluated as non-compensable disabling. Therefore, the Veteran did not meet the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a). The Board is precluded from assigning a TDIU rating on an extra-schedular basis under 38 C.F.R. § 4.16(b) in the first instance. However, if it is determined that the Veteran is unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities, the Board may refer the matter to the Director of the Compensation Service, for consideration of entitlement to TDIU on an extra-schedular basis. However, the evidence of record does not indicate that his PTSD, right shoulder disability, bilateral hearing loss, and tinnitus rendered the Veteran unable to secure or follow a substantially gainful occupation prior to January 26, 2010. In November 2007, the Veteran’s private doctor diagnosed right shoulder arthritis and opined that the effect of the Veteran’s right shoulder disability on his daily activity was mild. At the time, the Veteran reported constant right shoulder pain which was relieved by rest and medication. The Veteran also reported that at the time of pain, he could function with medication. The examiner did not state that right shoulder arthritis, precluded the Veteran from securing and following substantially gainful employment. A November 2007 VA examiner diagnosed the Veteran with bilateral hearing loss and tinnitus. The examiner did not state that right bilateral hearing loss and tinnitus precluded the Veteran from securing and following substantially gainful employment. In the November 2009 VA examination, the Veteran stated that he had been unemployed from the railroad industry since 2004, after a left knee replacement. The Veteran reported that he had worked for a railroad industry “going from brakeman to engineer to executive.” The examiner stated that the Veteran did “not contend that he [was] unemployable” as he “consider[ed] himself retired.” The examiner did not state that PTSD precluded the Veteran from securing and following substantially gainful employment. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board notes that the Veteran stopped working due to a nonservice connected knee disability. Prior to January 26, 2010, no medical professional opined that the Veteran’s service-connected disabilities individually or when considered together, precluded him from securing and following substantially gainful employment. Additionally, the evidence of record does not suggest that the Veteran’s service-connected disabilities individually or collectively rendered him unable to work. Moreover, the Veteran did not indicate that he was unable to work or submit an Application for Increased Compensation based on Unemployability until July 2015. The Board has considered whether referral of this portion of the TDIU claim to the Director of Compensation Service for extraschedular consideration is warranted but finds that the weight of the evidence is against the Veteran’s assertion that his service-connected disabilities alone rendered him unable to obtain or maintain substantially gainful employment prior to January 26, 2010 when considering his educational and work background as a brakeman, engineer, and executive. Accordingly, as the combined disability rating of the Veteran’s service-connected disability prior to January 26, 2010, does not meet the schedular criteria of 38 C.F.R. § 4.16(a) and the weight of the evidence is against the Veteran’s claim that his service-connected disabilities alone rendered him unable to obtain and maintain substantially gainful employment during this period, referral for extraschedular consideration is not warranted, and a TDIU must be denied. See 38 C.F.R. § 4.16(b). 3. Entitlement to a TDIU as of January 26, 2010 In July 2015, the Veteran asserted that his service-connected disabilities precluded him from securing and following substantially gainful employment. The evidence shows that the Veteran last worked October 2004. In a November 2009 VA examination, the Veteran reported that he worked 35 years in the railroad industry “going from brakeman to engineer to executive.” The Veteran retired “in 2004 after he had a left knee replacement.” The Veteran completed high school and has had more than a year of college training in agriculture. The Veteran reported helping his son-in-law on a farm and working in Agriculture in 2015. For the appeal period beginning on January 26, 2010, the Veteran is service-connected for PTSD rated as 30 percent disabling, bilateral hearing loss rated as 40 percent disabling, right shoulder disability rated as 20 percent disabling, and tinnitus rated as 10 percent disabling. As such, disabilities combine to a 70 percent rating as of January 26, 2010, and the Veteran meets the schedular threshold criteria for consideration of a TDIU as of such date. The Board notes the assertions of the Veteran, his wife, and his representative that since May 2009, the Veteran’s service-connected disabilities precluded him from securing and following substantially gainful employment; they are competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, it has not been shown that the Veteran, his wife, or his representative have the requisite training to opine on the issue of unemployability due to service-connected disabilities. There is a vocational assessment opinion indicating that the Veteran is unemployable from May 2009. Although the vocational counselor stated that her expertise, education, and extensive experience as a certified rehabilitation counselor prevails over the findings of medical professionals when it comes to determining whether emotional and physical limitations are productive of unemployability, the Board notes that the vocational counselor must still work with the actual medical findings themselves in terms of translating them into resultant occupational impairment. The Board finds that the vocational counselor’s findings on which the opinion is based are at odds with the contemporaneous evidence to include basic medical findings and the Veteran’s reports. The Board finds that based on the Veteran’s education and occupational background, it cannot necessarily be concluded that the Veteran is unemployable given the current manifestations of his service-connected disabilities. The Board also finds probative the evidence of record which shows that the Veteran had been employed by the same employer for decades and retired due to a knee disability. He also was not shown to seek employment or additional education or training after retiring in October 2004. The Board finds that although the Veteran’s service-connected disabilities cause functional impairment as evidenced by the assigned ratings, there is no indication that his service-connected disabilities alone or combined preclude him from securing and maintaining substantially gainful employment. The Board notes that medical records show that he has significantly severe non service-connected disabilities to include bilateral knees, lower back, obstructive sleep apnea, and right hip disabilities which play a large part in his functional impairment and may not be considered in support of the TDIU claim. Specifically, the evidence shows that the Veteran underwent a left knee replacement in 2004 and a right knee replacement in 2006. The Veteran was diagnosed with degenerative disk disease in 2007 and was treated for chronic lower back pain and stiffness. The Veteran was diagnosed with sleep apnea and a September 2017 medical record shows his obstructive sleep apnea was “untreated” and “poorly controlled…complicating blood pressure control.” The Veteran was being treated by a non-VA orthopedic surgeon for chronic right hip pain. A January 2018 medical record shows the Veteran was diagnosed with right hip arthritis with pending possible surgical intervention. Although there has been no medical opinion addressing the combined effect of all the Veteran’s service-connected disabilities, the Board observes that the duty to assist in a claim involving TDIU benefits “does not require obtaining a single medical opinion regarding the combined impact of all [of a veteran's] service-connected disabilities.” See Geib v. Shinseki, 733 F.3d 1350, 1354. In Geib, the United States Court of Appeals for the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA’s duty to assist “does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities.” See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner’s opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator). As such, the Board finds that an additional VA examiner’s opinion is not required in the present case. The counselor stated that Veteran’s service-connected PTSD precludes him from securing and following substantially gainful employment since at least May 2009. She stated that the Veteran’s PTSD causes symptoms including irritability, anxiety, lack of motivation, impaired concentration and memory, impaired sleep due to nightmares, a tendency to isolate, and difficulty with interpersonal relationships. The counselor stated that due to his service-connected PTSD and associated impaired motivation, the Veteran needs to be reminded to maintain his personal hygiene, he requires help driving, and he requires help with work around the house. The counselor noted a review of the claims file. However, she failed to reconcile the contemporaneous medical findings and reports from the Veteran which showed that the Veteran’s service-connected PTSD alone or when combined with his other service-connected disabilities, resulted in less than total occupational and social impairment. For example, a February 2017, ophthalmology report shows that the Veteran was “unable to drive with current specs because he [felt] like his vision fluctuates.” The Veteran reported that he retired from the railroad industry in 2004 “after he had to have a left knee replacement.” He reported that when he was employed, he worked primarily by himself, he got along with other workers and supervisors, and he did not report any conflicts. In November 2009, it was noted that the Veteran did “not contend that he [was] unemployable. He consider[ed] himself retired” and he helped his son-in-law on his farm. The Veteran reported an intolerance of crowds and the public. However, he consistently reported a good relationship with his family and friends, he actively participated in group therapy, he attended church, and he participated in social activities with no reported issues. In December 2017, a VA medical examiner noted that the Veteran reported moderate to severe impairment in activities of daily living (ADLs) related to mobility and memory, “which are attributable to the normal aging process and chronic pain.” The examiner stated that the Veteran’s functioning in ADLs related to household and participation in society is deemed to be minimally impaired based on clinical interview. Based on an in-person examination, a review of the claims file, and the Veteran’s own accounts, VA examiners have consistently found that the Veteran’s PTSD manifests at functional levels above a total occupational and social impairment. The rehabilitation counselor stated that “medical professionals are qualified to define the physical or emotional limitations extending from a condition but have no expertise in translating this information into opining on whether this degree of restriction or limitation, or both, prevents one from working.” Although the Board notes that the vocational expert is qualified, the responses regarding the proficiency of the medical examiner from making a decision are misplaced. The VA examinations were done in regard to the Veteran’s service-connected PTSD, not his vocational rehabilitation or application for total disability due to individual unemployability. Thus, the statement made by the medical professional regarding the Veteran’s occupational ability was not a rationale or opinion regarding his employment disability but was rather a statement made in response to the Veteran’s PTSD. The medical professionals made these assessments contemporaneously with the Veteran’s claim, in conjunction with an in-person examination, based on the Veteran’s reports, and based on a review of the claims file which documented the Veteran’s other service-connected disabilities. Moreover, the medical professionals’ assessments are fully supported by the evidence of record which shows that the Veteran stated that he suffered from PTSD since separation from service; he maintained employment for 35 years thereafter and reported no workplace conflicts due to PTSD; PTSD manifests at functional levels above a total occupational and social impairment; and he stopped working because of a non-service connected disability. The medical professionals’ opinions therefore are not outweighed by the vocational expert statements made years after the period in question. Moreover, the rehabilitation counselor stated that the Veteran’s service-connected bilateral hearing loss and tinnitus has precluded the Veteran’s ability to secure and follow substantially gainful employment since at least May 2009. The counselor stated that the disabilities preclude the Veteran’s ability to communicate effectively with coworkers, supervisors, and the general public, as is required in all forms of competitive employment. The Board disagrees. In March 2010 the Veteran reported that it was “hard to hear.” The Veteran’s private doctor opined that in his usual occupation speech without visual cues would be very difficult for the Veteran to understand. An August 2015 audiology consult record, shows that the Veteran was fitted for new hearing aids after he complained of a decreased benefit in the current hearing aids. Notably, during the August 2015 audiology consult, the Veteran reported that he “work[ed] in agriculture and [his] hearing aids [were] generally exposed to environmental elements on a daily basis.” In September 2015, the Veteran did not report any functional loss with regard to his bilateral hearing loss disability. However, the Veteran stated that the hearing aids helped minimally with tinnitus. In a June 2016 nursing assessment, it was noted that the Veteran’s hearing was corrected with hearing aids, and that he was able to understand and follow instructions. During an August 2016 VA examination for hearing loss and tinnitus, the Veteran reported that hearing loss impacted his ordinary conditions of daily life, including his ability to work, in that he was unable to hear when he removed his hearing aids. The Veteran also reported that he had trouble concentrating due to tinnitus. In September 2017, the Veteran reported difficulty understanding speech both with or without the use of his hearing aids. The Board finds that the evidence does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to the Veteran’s service-connected bilateral hearing loss and tinnitus. The Board notes the Veteran retired from the railroad industry after 35 years of experience as a brakeman, engineer, and executive. The Veteran has reported more than a year of college in the study of agriculture, a history of ranching until 1988, helping his son-in-law on his farm, and working in agriculture. No VA hearing examination showed the Veteran’s bilateral hearing loss disability and tinnitus alone or when combined with his other service-connected disabilities, to be severe enough to render him unemployable. While the Veteran does have some limitations associated with bilateral hearing loss and tinnitus, such limitations alone are not of sufficient severity to produce unemployability, especially when considering reasonable accommodations as specified in the Americans with Disabilities Act. For example, the evidence does not show how hearing loss and tinnitus, even when considered with the Veteran’s other service-connected disabilities, would preclude the Veteran from working in agriculture as he reported in August 2015. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (it is the rating official who is responsible for interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present). The Board notes that the assigned 40 percent rating for bilateral hearing loss and 10 percent rating for tinnitus contemplates the reported functional effects of the service-connected disabilities. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The ratings also represent the average impairment in earning capacity in occupations resulting from a bilateral hearing loss disability and tinnitus and is considered adequate to compensate for considerable loss of working time. 38 C.F.R. § 4.1. Ultimately, the Board finds that the Veteran’s service-connected bilateral hearing loss and tinnitus alone and when considered in combination with his other service-connected disabilities does not preclude the Veteran from securing and following substantially gainful employment. In addition, the rehabilitation counselor opined that the Veteran is precluded from satisfying the exertional requirements of even sedentary unskilled work at substantially gainful activity levels due to his service-connected degenerative arthritis of the right shoulder since at least May 2009. She stated that the Veteran has right shoulder pain and requires the use of a hand-held massager, Icy Hot, and pain medication to relieve his pain. She stated that the pain causes difficulty with reaching, lifting, and carrying. A September 2015 VA examiner conducted an in-person examination of the Veteran, reviewed the claims file and opined that the right shoulder disability did not impact the Veteran’s ability to perform any type of occupational tasks. An August 2016 VA examiner opined that the functional impact of the Veteran’s right shoulder disability on his ability to perform any occupational tasks was that the Veteran was unable to lift more than eight to ten pounds and the Veteran was unable to raise his right arm up to shoulder level. The rehabilitation counselor reviewed the medical evidence in the Veteran’s file however, as the counselor’s address is in a state distant from the Veteran’s residence, there is no indication that any in-person examination was performed. The expert did not give a clear explanation why or how the Veteran’s right shoulder precluded even sedentary employment since at least May 2009, but the Veteran was still able to partake in physical activities for leisure. The evidence shows that although the Veteran is right hand dominant, his service-connected right shoulder disability did not preclude him from recreational activities such as hunting and fishing. He was also able to help his son-in-law on a farm and work in agriculture. Moreover, the rehabilitation counselor focused on the Veteran’s past work as a railroad engineer rather than his reported work as an executive. The Board notes that unemployability does not simply mean unemployed, it means physically and mentally unable to engage in substantially gainful employment due to one’s service connected disabilities. Therefore, the Board finds that the Veteran’s right shoulder disability alone and when considered with his other service-connected disabilities did not preclude the Veteran from securing and following substantially gainful employment. The Board notes that in considering the Veteran’s unemployability, the counselor made no mention of the Veteran’s capability for teleworking. She made no mention of the federal laws requiring employers to afford accommodation for persons with disabilities. She did not address the Veteran’s active recreational life, his experience as an executive, or the Veteran’s August 2015 account of working in agriculture. Therefore, the Board affords more weight to the reports made by the Veteran during treatment and the contemporaneous medical findings than the rehabilitation counselor’s findings. The Board acknowledges the Veteran’s statements that his service-connected disabilities alone prevent employment. The record reflects that although the Veteran has not worked since October 2004, he has given a conflicting statement regarding his inability to work, which he has attributed to both service-connected and nonservice-connected disabilities. Although VA examinations show that the Veteran’s service-connected conditions may have caused some economic inadaptability, there is no showing of unemployability based solely on his service-connected disabilities. The Board finds that since May 2009, the Veteran is capable of securing substantially gainful employment. The Veteran has a high school education, substantial experience with the railroad industry, and training in agriculture. None of his service-connected disabilities have been shown to prevent him use of a computer keyboard, or performing cognitive activities such as ordering materials, scheduling work projects, maintaining records in a small group or solitary environment, or working in agriculture. In fact, the Veteran reported in August 2015, that he was working in agriculture. The Board attaches great probative weight to the unbiased statements he made while seeking treatment. Therefore, the Board finds that the Veteran’s service-connected PTSD alone and when considered in combination with his other service-connected disabilities does not preclude the Veteran from securing and following substantially gainful employment. In sum, the cumulative evidence of record indicates that the service-connected disabilities alone are not of sufficient severity to produce unemployability. As such, a TDIU is not warranted. 38 C.F.R. § 4.16. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to a TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Onyewu, 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.