Citation Nr: 20021712 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-30 132 DATE: March 26, 2020 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. Entitlement to a total disability rating for individual unemployability (TDIU) as a result of service-connected disabilities is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s psychiatric symptoms were productive of, at most, occupational and social impairment with reduced reliability and productivity; and not by symptoms productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, or greater levels of impairment.. 2. Throughout the appeal period, the Veteran did not meet the schedule criteria for TDIU and was not precluded from participating in substantially gainful employment due to her service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130; Diagnostic Code (DC) 9201-9440 (2019). 2. The criteria for entitlement to a TDIU as a result of service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from January 1999 to June 1999, April 2000 to November 2000, November 2002 to February 2003, and August 2005 to January 2007. These issues come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Increased Rating for PTSD. The Veteran contends that her PTSD symptoms are more severe than the rating currently assigned. Her claim for an increased claim was received by VA in June 2017. The August 2017 rating decision continued the previous 50 percent rating for her PTSD. The Veteran timely appealed that determination to the Board. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans’ Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s PTSD symptoms are currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). Ratings are assigned according to the manifestation of particular symptoms. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (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 rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. 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 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Board finds that a preponderance of the evidence demonstrates that the Veteran’s PTSD symptoms most closely align with a 50 percent rating during the appeal period. Therefore, her claim for an increased rating must be denied. Factual History A June 2016 VA treatment record noted the Veteran deciding on a sentence related to a DIU conviction in 2015. She stated that she felt relief in deciding on one year combination of prison and home confinement. She also reported that her daughter was almost charged with shoplifting; however, her mood was described as upbeat and better with more energy in the session. The clinician also reported that the Veteran seemed to be coping well with stress. A mental status examination was conducted. The Veteran was found to be alert and oriented. Mood was described as good with full affect range. No evidence of psychosis or intoxication was observed. Thought processes were found to logical and coherent. Memory was found to be intact, although the Veteran reported loss of memories for periods of her childhood. The Veteran denied any current suicidal or homicidal ideation. A July 2016 VA treatment record noted the Veteran’s medication reduction because she was in an emotionally good place. She also reported uncertainty regarding her sentencing and criminal charges; however, she continued to maintain a forward thinking approach and goals after she completed her sentencing. The clinician noted her previous alcohol and heavy opiate use; however, she reported alcohol sobriety since 2010 and transition from opiates in January 2016. A mental status examination was conducted. The Veteran was found to be alert, oriented, casually dressed and well groomed. She was found to make good eye contact and was pleasant and cooperative. The clinician noted mild tremulousness when anxious. Speech was found to be spontaneous and normal in rate and rhythm. Mood was described as “great” with a mildly anxious affect. Thought processes were found to be linear and goal directed. Content was found to be reality-based. No evidence of delusions were found on examination. The Veteran denied any suicidal or homicidal ideation, as well as any auditory or visual hallucinations. Insight, judgment, attention, concentration, and recall of personal history were found to be intact. A subsequent July 2016 VA treatment record noted the Veteran’s anxiety related to her criminal charges and sentencing. She also reported her mood as “OK as long as she keeps herself busy.” She also reported working on “getting excel spreadsheets set up for moving business, working on strategic plan etc.” The Veteran was reported to have a strong drive to keep learning and her mood appeared stable at this point. A mental status examination was conducted. The Veteran was found to be alert and oriented. Her mood was described as “OK” with a full range of affect; however, she was clearly anxious with less focus and fidgeting. No evidence of psychosis or intoxication was observed. Thought processes were found to be logical and coherent. Memory was found to be intact, although she reported loss of memory for periods of her childhood. The Veteran denied any current suicidal or homicidal ideation. An April 2017 VA treatment record noted the Veteran’s recent release from confinement, but has not wanted to get out of bed, has gained weight, and that everything, even small things, were upsetting her. She reported little motivation, “has been scattered and putting things off,” and described anhedonia and oversleeping. The clinician noted her previous alcohol and heavy opiate use; however, she reported alcohol sobriety since 2010 and transition from opiates in January 2016. A mental status examination was conducted. The Veteran was found to be alert, oriented, casually dressed and well groomed. She was found to make good eye contact and was pleasant and cooperative. The clinician noted mild tremulousness when anxious. Speech was found to be spontaneous and normal in rate and rhythm. Mood was described as “depressed” with a mildly anxious affect. Thought processes were found to be liner and goal directed. Content was found to be reality-based. No evidence of delusions were found on examination. The Veteran denied any suicidal or homicidal ideations, as well as any auditory or visual hallucinations. Insight, judgment, attention, concentration, and recall of personal history were found to be intact. A subsequent April 2017 VA treatment record noted the Veteran recently experiencing a seizure with continued problems with memory as a result. However, the Veteran reported an absence of depression and the clinician make particular note that the Veteran’s mood by appearance and self-report was much improved. She reported that he has “done some jobs with her husband,” that she generally enjoyed his company, and planned to continue working in their business. A mental status examination was conducted. The Veteran was found to be alert, oriented, pleasant, and engaged. Mood was described as “good” with a normal range of affect. She was also noted to be future oriented. No evidence of psychosis or intoxication was observed. Thought processes were found to be logical and coherent. The Veteran denied any suicidal or homicidal ideation. A May 2017 VA treatment record noted the Veteran’s severe fatigue and muscle aches over the past few weeks. She reported waking up feeling good, but fatigue would set in within an hour. She also reported forcing herself to do things, but described her mood as “not depressed.” She further reported having continued memory problems and staying focused, but her relationship with her boyfriend continued to be positive in her life. A mental status examination was conducted. The Veteran was found to be alert, oriented, pleasant, and engaged. Mood was described as “OK”, but fatigue was interfering with her activities. Affect was found to be appropriate to content. No evidence of psychosis or intoxication was observed. Thought processes were found to be logical and coherent. The Veteran denied any suicidal or homicidal ideation. A subsequent May 2017 VA treatment record noted the Veteran’s frustrations with her physical health, with feeling good some days and lousy on other days. She also reported being very emotional and “breaking into tears,” but reported that it was “good, if I can get it all out” when she cried during her session. The examiner noted that although the Veteran would get down on herself, her mood was not depressed. A mental status examination was conducted. The Veteran was found to be alert, oriented, pleasant, and engaging. Mood and affect were found to be somewhat labile but appropriate to content. No evidence of psychosis or intoxication was observed. Thought processes were found to be logical and coherent. The Veteran denied any suicidal or homicidal ideation. The Veteran also underwent private mental health treatment from May 2017 through August 2017. The examiners noted the Veteran denying suicidal or homicidal ideation, as well as any substance abuse issues. She also reported feeling dissatisfied with her progress in group therapy and wanted to “get better” and “have a stable mood for more than a hour.” The Veteran was reported being anxious and agitated at the start of each session, but would calm down considerably as each session would progress. Of note, a July 2017 private treatment record note the Veteran entering very animated, agitated, and rapid in speech, but departed feeling more knowledgeable about her symptoms. In addition, a subsequent July 2017 private treatment record noted the Veteran being emotionally unregulated with rapid mood swings and openly sobbing at the beginning of her session, but had gained control to the point that she could process things and state why she needed her medication by the end of the session. Mental status examinations were conducted at each session. No significant changes were reported or observed in terms of mood/affect, thought process/orientation, motor activity and speech, behavior/functioning, substance use/addictive behavior. The Veteran denied any suicidal or homicidal ideation and was not found to be a risk for self-harm or harm to others. The Veteran underwent a VA PTSD examination in August 2017. The examiner noted diagnoses of PTSD and major depressive disorder, recurrent. In addition, the examiner noted that the Veteran was currently living with her fiancé whom she has been with for two years. She described the relationship as excellent. She also described relationships with her adult children as “excellent” and kept in touch with her family, but denied any active friendships. The examiner also noted that the Veteran was recently incarcerated for a third DUI offense related to taking unprescribed Xanax, but denied any alcohol use in the past eight to ten years and denied any use of unprescribed medication since 2015. She reported that she last worked as an assistant manager for three years until 2010, when she quit due to stress and sleep management related to working the night shift. She also reported that she began pursuing her master’s degree in Clinical Psychology in 2011 and last attended classes in March 2013, which she discontinued due to her mental health symptoms. The examiner noted the following symptoms on examination: depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances. The examiner then found that the Veteran’s symptomology led to occupational and social impairment with reduced reliability and productivity. A mental status examination was conducted. The Veteran arrived on time, was casually dressed and appropriately groomed. She was found to be oriented to time, place, and situation. She was also found to be pleasant, cooperative, and maintained good eye contact throughout the interview. Her mood was described as anxious with congruent affect. Thought process was found to be linear. The examiner found no evidence of psychosis on examination. The Veteran denied any suicidal or homicidal ideation. The examiner found that the Veteran’s PTSD was currently moderate in severity which contributed to moderate impairment in social and occupational functioning. A September 2017 VA treatment record noted no acute mental health issues being experienced by the Veteran. A mental status examination was conducted in January 2018. The Veteran was found to be fully alert. Attention/concentration were found to be normal. Speech/language noted the following: no dysarthria, language fluent without paraphasic errors, normal prosody. The Veteran was found to be fully oriented to time, place, and purpose with recall of recent/remote biographical data found to be intact. Mood was described as “good” with full range of affect. A September 2018 VA treatment record noted no acute mental health issues being experienced by the Veteran. A mental status examination was conducted in November 2018. The Veteran was found to be fully alert and able to follow all commands. Speech/language noted the following: no dysarthria, language fluent without paraphasic errors, normal prosody. The Veteran was oriented to time, place, and situation. Mood was described as “irritable to situation” with a full affect range. The Veteran underwent a second VA PTSD examination in April 2019. The examiner noted the following diagnoses: PTSD; major depressive disorder, moderate; and alcohol use disorder, sustained remission. The examiner also noted overlapping symptoms of irritability, anhedonia, anxiety/agitation, sleep disruption, entrenched negative beliefs about self and others, and subjective cognitive inefficiencies/defects. The Veteran reported her continued relationship with her fiancé as “solid” but struggled with her increased dependency on him over time as she prided herself on her independence and self-sufficiency. She also reported regular contact with her mother and siblings and “very close” relationships with her adult children, but denied any close friends. She reported being independent in activities of daily living, but reported difficulty keeping up with household chores and complained of periods of difficulty getting out of bed and motivating herself to do anything, including showering. She also complained of frequent motivational deficits, being overwhelmed, chronic difficulties focusing, getting bored, and being frustrated easily. The examiner reported that the Veteran’s last fulltime work was a managerial position at Walmart from 2007 to 2010, but resigned from the position due to increased stress and sleep disturbance, associated in part with a night shift schedule. The Veteran complained that her supervisor reneged on his promise to give her a daytime shift. She also reported a history of frequent altercations with coworkers and customers and complained of agitation, irritability, and panic attacks, but reported that she routinely performed her job effectively and received positive performance reviews. She further reported that she has sought employment since 2010, but has had difficulty finding work, attributing this to her history of felony conviction and incarceration. She described herself as highly motivated to work, but has never sought employment support services through the VA. The Veteran reported complaints of a lack of purpose and meaning in her life, chronically unrestorative sleep, occasional nightmares, psychological and physiological reactivity to trauma cues, periodic emotionality and crying jags, avoidance of trauma-related thoughts/memories, frequent boredom vs. overwhelm/frustration, pessimism about her job prospects, irritability and verbal temper outbursts, episodic prolonged depression with motivational deficits and social withdrawal, feeling “always in a fog” mentally, worries about her health, chronic fatigue and periodic psychomotor retardation, impaired focus and memory, chronic, daily “unhappiness” since her military discharge, labile mood, anxious/negative ruminations, self-criticalness and disappointment, feelings of failure, and morbid thoughts. She actively tried to suppress traumatic memories and she did not like to talk about past traumas. She reported a history of suicidal ideation but denied any recent thoughts of self-harm. She also denied any current cravings to use alcohol or drugs. The following symptoms were noted on examination: depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in adapting to stressful circumstances. The examiner found that the Veteran’s symptomology led to occupational and social impairment with reduced reliability and productivity. A mental status examination was conducted. The Veteran was prompt to the current evaluation. She was accompanied by her fiancé, but he did not participate in the interview. She was casually dressed and appropriately groomed. She was alert and fully oriented. Her eye contact was appropriate. Speech was clear and fluent with normal volume, rate, and tone. She was reciprocal in conversation. Expressed thoughts were found to be logical and goal-directed. There was no evidence of psychotic thought process or delusional content observed. Her mood and affect were described as “anxious, tired, and discouraged. She was pleasant and engaged throughout the interview. Cognition was intact for the purposes of this evaluation. The examiner found that the Veteran continued to struggle with moderate symptoms of PTSD and associated depression, despite her medication. The examiner noted that the Veteran worried about her health, was highly self-critical, and expressed frustration with her difficulty securing employment because of her legal history. The examiner also noted that the Veteran’s social and occupational functioning remained moderately to severely impaired. She had strong social support from her fiancé, mother, siblings, children, and grandchildren. She denied having any close friends and said that her social support was been limited to family since her return from Iraq and discharge from the military. She has not been gainfully employed since 2010, when she resigned from her three-year, full-time managerial job at Walmart. She had become increasingly stressed due to working a night shift, and her supervisor reportedly reneged on a promise to give her a day shift. She reported inability to secure employment since her 2015 incarceration for her third DUI. Her third DUI was not related to alcohol; it was caused by her ingestion of illicit benzodiazepines. She expressed motivation to work. She felt very discouraged about her job prospects because of her legal history. The examiner also found that the evidence did not support the Veteran’s contention that she was unable to achieve and sustain gainful employment due to her mental health conditions; indeed, the examiner suspected that employment would be highly beneficial to her. The main barrier to work did not appear to be the Veteran’s mental health symptoms but her history of felony conviction and incarceration. She has been sober from all illicit substance since 2015, and she reported sustained sobriety from alcohol for over 10 years. She was found to be intelligent, had specialized skills, and was motivated to work. She had a managerial position at Walmart for three years after her military discharge, 2007 to 2010. Although she described herself as increasingly stressed and irritable in her last position, she performed her job effectively and received positive performance reviews. She resigned from her position because the night-shift work aggravated her mental health symptoms and her supervisor reneged on his promise to give her a day-shift. She reported that she regretted leaving her position at Walmart in retrospect. She had become very frustrated by her difficulty finding appropriate work due to her felony conviction/incarceration in 2015. She said that she has applied and interviewed for numerous positions but has not been offered a job. The examiner noted that her VA psychologist suggested volunteer work at their last meeting, but the Veteran declined. The Veteran underwent a private vocational evaluation in November 2019. The examiner noted that the Veteran appeared very distressed and tearful throughout the interview, with frequent redirection and repetition of questions as her thoughts were tangential with rapid speech and had difficulty remembering questions asked. The Veteran reported being “constantly” anxious and hypervigilant. She also reported experiencing four debilitating flashbacks each week, requiring hours to recover. She also reported unprovoked irritability, impaired motivation, and difficulty completing simple tasks, including maintaining personal hygiene, due to her PTSD. In addition, she reported immense relationship and interpersonal stress, social isolation, which have worsened over time. She further reported that her severe anxiety and stress impacted her cognitive functioning, including her memory, ability to concentrate, word formulation, and speech output. She also complained of significant sleep difficulties due to nightmares, anxiety, racing thoughts, and hypervigilance. She required cues from her fiancé regarding bathing and changing her clothes. She occasionally attempts to perform housework “in spurts but not every day.” She reported that her fiancé performed all grocery shopping, cooking, and laundry. The examiner then noted the Veteran’s educational history, obtaining an associate degree in general studies, a bachelor’s degree in journalism and political science, and had begun work on a master’s degree in clinical psychology, but withdrew from her classes due to her mental health symptoms. The examiner also noted that the Veteran last worked as an assistant store manager for Walmart from November 2007 to November 2010. During this time, the Veteran reported experiencing daily panic attacks, frequent verbal altercations with coworkers and customers, and difficulty focusing on her job responsibilities. She estimated that she missed two to three months of work due to her PTSD symptomology. The examiner then found that the Veteran was unable to secure or follow substantially gainful employment, including unskilled work, since at least November 2010. The examiner found that the Veteran’s PTSD symptomology manifested by: interpersonal difficulties, impaired memory, irritability, hypervigilance, racing thoughts, negative mood, flashbacks, suicidal ideations with prior attempts, crying spells, impaired motivation, a tendency to isolate, severe limitations in accepting instructions and responding appropriately to feedback from supervisors, maintaining appropriate social behavior, interacting with coworkers, peers, and the general public, as well as significant difficulties with maintaining concentration, focus, and pace. The examiner then noted that the Veteran was unable to meet the following basic employment standards, regardless of skill set: (1) sustaining focus and attention for at least two hours at one time throughout the work day; (2) refraining from taking unscheduled or prolonged breaks away from the work station; (3) attending work on a regular basis, free from excessive unscheduled absences, tardiness or early departures; (4) producing a certain, minimal amount of work while on the job; and (5) getting along with coworkers and supervisors in order to maintain a professional and productive work environment. The examiner then stated that she disagreed with the April 2019 VA examiner’s opinion that the main barrier to work was not the Veteran’s mental health symptoms, but her history of felony conviction and incarceration. The private examiner found that VA opinion failed to take into consideration the Veteran’s significant functional employment from 2010 to 2015, when her felony conviction occurred. The examiner found that the Veteran’s PTSD symptoms were the most significant barrier to employment since 2010 and that, although she had acquired skills through her educational and vocational history, she would not be able to execute these skills due to her inability to maintain concentration, persistence, and pace, in addition to her inability to recall multi-step tasks as a result of her PTSD. In addition, the Board has considered the Veteran’s representatives contentions in December 2019 noting that the frequency, severity and duration of the Veteran PTSD symptoms warrant an increased 70 percent rating at minimum. The Board has considered the representative’s contentions. However, the Board finds these contentions are not supported by the probative evidence of record. Further, VA benefits may not be granted based on speculative opinions. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102(2019). That evidence must be both competent and credible. Here, there is no such balance of evidence. Analysis The Board finds that the evidence of record demonstrate that the Veteran’s PTSD symptoms more nearly approximate the criteria for a 50 percent evaluation during the appeal period. A rating of 70 percent or more is not warranted. The record does not demonstrate that the Veteran experienced intermittent illogical, obscure or irrelevant speech as a result of his PTSD symptomology during this time period. Her VA treatment records, private treatment records, and VA examinations reported the Veteran’s speech to be normal. There is also no evidence of the Veteran exhibiting spatial disorientation, or a neglect of her personal appearance and hygiene. While the Veteran reported decreased motivation to bathe or dress herself, the majority of the evidence shows that she was found to be casually dressed and appropriately groomed at numerous times throughout the appeal period. While the Veteran reported irritability and anger issues in her private vocational assessment, the vast majority of the evidence shows no complaints of prolonged irritability or anger issues. In addition, while she reported previous alcohol and opiate abuse, the evidence shows that she was in full remission without any evidence of relapse during the appeal period, which precludes any finding of impaired impulse control. The Veteran’s VA and private treatment records reported her thought process to be intact and goal-directed. She reported instances of passive thoughts of self-harm on the private vocational assessment; however, the vast majority of the evidence of record demonstrates that the Veteran denied any suicidal ideation or homicidal ideation. While suicidal ideation is part of the criteria for a 70 percent evaluation, this single reference to a single symptom included in the 70 percent rating is insufficient to warrant an increased rating. As set out above, the evidence of record more nearly approximates a 50 percent rating based, in part, on the Veteran’s continued denials of suicidal ideation. The Veteran’s attorney cites an April 2015 attempted drug overdose and previous overdose in 2007 in finding that the Veteran experiences suicidal ideation. However, the Board notes that the 2007 overdose evidence was previously contemplated in the previous rating by the RO, which continued her 50 percent rating. In addition, this April 2015 drug overdose was noted to not be related to any attempt at self-harm. Furthermore, this evidence is outside the pertinent appeal period and does not need to be considered by the Board in its analysis of the Veteran’s current symptomology from June 2016 (a year prior to her increased rating claim being received by VA) to the present date. The evidence also does not demonstrate that the Veteran reported any disorientation to time or place. Additionally, the evidence does not demonstrate that the Veteran has experienced any auditory or visual hallucinations. In addition, the evidence does not demonstrate that the Veteran has experienced any prolonged short term or long term memory issues. While she reported memory issues with her VA treating physicians, it was noted to be related to childhood traumatic memories. Furthermore, her memory was found to be intact during numerous evaluations. The Veteran has reported episodes of depression and anxiety; however, the evidence does not demonstrate near-continuous panic or depression affecting his ability to function independently, appropriately and effectively. The record reflects that the Veteran’s depression and anxiety has waxed and waned throughout the appeal period. Indeed, she denied feeling depressed at several points throughout the appeal period. In addition, she never reported any obsessive thoughts that interfered with his routine activities. There is no indication that the Veteran experienced obsessive thoughts which affected her employability or social interactions. She reported that she had great relationships with her fiancé, family, adult children, and grandchildren. This evidence does not demonstrate that the Veteran has an inability to establish and maintain effective relationships as a result of her PTSD. The evidence of record also demonstrates that the Veteran has not experienced any auditory or visual hallucinations, as well as any other symptoms of psychosis. She also reported that she has attempted to secure employment since November 2010, and was motivated to return to work. The Board notes the private vocational assessment and its findings. However, it finds the cumulative weight of the medical evidence generated prior to this assessment, which is relatively consistent in symptomology and generated by several clinicians, outweighs the evidence cited in the vocational assessment which indicates a greater level of impairment. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends her symptoms warrant a higher rating. She submitted an affidavit in August 2018, stating that she experienced difficulty interacting with coworkers and customers, was anxious and “on edge”, daily panic attacks, anxiety, severe depression, anger issues with family, and sleep difficulties. The Board acknowledges that the Veteran is competent to give evidence about what she observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 50 percent currently assigned for her psychiatric disability during the appeal period based on the symptomology present. Indeed, her statements are contradicted by the pertinent medical evidence, which noted that she did not experience severe depression, daily panic attacks, and anger issues with family. Rather, note consistently good and loving relationships with her fiancé and her adult children. Based on the foregoing, the Board finds the PTSD symptomology has been productive of, at most, occupational and social impairment with reduced reliability and productivity during the entire appeal period. As such, a rating in excess of 50 percent for the Veteran’s PTSD is not warranted at any time. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). 2. Entitlement to a TDIU. The Veteran contends that she is entitled to a TDIU as a result of her service-connected disabilities. A TDIU claim, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has raised the issue of a TDIU as part of the increased rating claim on appeal. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2019). A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Whether a veteran is capable of substantially gainful employment is determined by the VA adjudicator and is not a medical determination. 38 C.F.R. § 4.16 (a). When evaluating TDIU entitlement, the pertinent inquiry is whether a claimant’s service-connected disability alone is of sufficient severity to produce unemployability. The impact of non-service connected disabilities is not to be considered. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The ultimate question is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Notably, in a recent precedential case, in Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16 (b) to have two components: one economic and one noneconomic. The economic component 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. The non-economic component includes consideration of the following: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, U.S. App. Vet. Claims LEXIS 386 (2019). During the period on appeal, service connection was in effect for the following disabilities: PTSD with major depressive disorder, with a 50 percent rating assigned. The schedular criteria for TDIU have not been met. 38 C.F.R. § 4.16 (a)(2019). Accordingly, the Veteran does not meet the eligibility requirement for a TDIU on a schedular basis. If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, but evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board must specifically adjudicate whether to remand a case for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU. Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In order to prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that a referral for consideration of the TDIU claim for extra-schedular consideration is not warranted. The record reflects that, throughout the period on appeal, while the Veteran was unemployed, her medical records do not indicate her PTSD symptoms left her incapable from obtaining employment. A review of the Veteran’s post-service VA and private treatment records reveals continuous treatment for her service-connected psychiatric symptoms. However, none of the Veteran’s treating physicians have given a positive opinion that the Veteran’s service-connected disabilities rendered her unable to obtain and maintain a substantially gainful employment. Furthermore, the VA examinations detail how the Veteran’s psychiatric symptomology affected her employment; however, the examiners did not find that the Veteran’s psychiatric symptomology precluded her from obtaining or maintaining gainful employment. Indeed, the evidence shows that the Veteran was motivated to return to work, that she regretted leaving her last position in 2010, that she has attempted to secure employment since 2010, but found her 2015 felony conviction and incarceration were her main limitation to securing employment, and that she worked with her husband on several jobs. The private vocational assessment found the Veteran was unable to secure or follow substantially gainful employment as a result of her PTSD symptoms. However, this evaluation is entitled to less probative value as it is contradicted by the other pertinent evidence of record which demonstrates the Veteran is not precluded from employment as a result of her service-connected disabilities. The cumulative probative weight of all the medical evidence outweighs this single finding of the Veteran’s inability to secure employment. The Board acknowledges that the Veteran’s service-connected disabilities may impact her ability to engage in certain employment; however, the evidence does not support a finding that her service connected disabilities prevent her from obtaining or sustaining any kind of employment. As the evidence does not indicate that the Veteran has been rendered unemployable by reason of her service-connected disabilities at any time during the pendency of the appeal, the Board is not required to submit her claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). Therefore, the Veteran’s claim of entitlement to TDIU is denied. K. R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.