Citation Nr: 20031909 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 17-64 113 DATE: May 6, 2020 ORDER New and material evidence having been received, the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) is deemed reopened. Entitlement to service connection for PTSD is denied. Entitlement to a compensable disability rating for an acquired psychiatric disorder to include an unspecified trauma and stressor related disorder and unspecified depression with anxious distress prior to August 21, 2017 is denied. Entitlement to a disability rating in excess of 50 percent, but no greater, for an acquired psychiatric disorder to include an unspecified trauma and stressor related disorder and unspecified depression with anxious distress from to August 21, 2017 is granted. Entitlement to TDIU is denied. FINDINGS OF FACT 1. A January 2008 Board decision denying service connection for PTSD is final, and evidence received by VA since the January 2008 Board decision is new, material, and gives rise to a reasonable likelihood of substantiating the Veteran’s claim. 2. The Veteran does not have a current diagnosis of PTSD and did not manifest a diagnosis of PTSD throughout the period on appeal. 3. Prior to August 21, 2017, the Veteran did not manifest symptoms controlled by medication; occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity; with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment. 4. From August 21, 2017, the Veteran manifested occupational and social impairment with occasional with reduced reliability and productivity, but, from August 21, 2017, the Veteran did not manifest occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood or total occupational and social impairment. 5. The Veteran’s previously service-connected disabilities do not prevent the Veteran from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The January 2008 Board decision denying service connection for PTSD is final; 38 U.S.C. § 7105 (2006); 38 C.F.R. § 20.1100 (2007); and the criteria for reopening the Veteran’s previously denied claim for service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for a compensable disability rating for an acquired psychiatric disorder to include an unspecified trauma and stressor related disorder and unspecified depression with anxious distress prior to August 21, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9435. 4. The criteria for a disability rating of 50 percent, but no greater, for an acquired psychiatric disorder to include an unspecified trauma and stressor related disorder and unspecified depression with anxious distress from to August 21, 2017 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9435. 5. The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1966 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD and assigned a noncompensable disability rating for an acquired psychiatric disorder to include unspecified trauma and stressor related disorder. This appeal is being adjudicated under the legacy appellate framework. In a December 2017 substantive appeal to the Board, the Veteran requested a personal hearing before the Board. In March 2018, the Board withdrew a request for a personal hearing before the Board. Nevertheless, the Veteran participated in a personal hearing before the undersigned Veterans Law Judge (VLJ) in April 2019, and the Veteran explicitly declined the opportunity to testify substantively on any of the issues currently on appeal. See Transcript. In January 2020, the Peter J. Meadows, the Veteran’s then representative of record, attempted to withdraw as the Veteran’s representative. In February 2020, RO sent notice to Mr. Meadows indicating that he was no longer recognized as the attorney of record; as well as a corresponding notice to the Veteran. 1. New and material evidence having been received, the issue of entitlement to service connection for PTSD is deemed reopened. At issue is whether the Veteran has submitted new and material evidence to reopen a claim for entitlement to service connection for PTSD. The Board finds that evidence sufficient to reopen the claim has been submitted, and the issue of entitlement to service connection for PTSD is deemed reopened. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). The RO originally denied the Veteran service connection for PTSD in September 2006. The Veteran appealed, and the decision was affirmed in a January 2008 final Board decision. The Veteran filed a claim to reopen his previously denied claim of entitlement to service connection, and, in June 2016, the RO reopened the Veteran’s claim but denied entitlement to service connection for PTSD on the merits. The Veteran appealed. Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. At the time of the January 2008 Board decision, the record contained evidence of a diagnosis of PTSD, but the record did not contain evidence that the Veteran served in combat or corroboration of claimed in-service stressors. Since the January 2008 Board decision, VA has received evidence, including a June 2015 VA examination, that the Veteran has a current diagnosis of unspecified trauma and stressor related disorder. Although not a diagnosis of PTSD, a diagnosis of unspecified trauma and stressor related disorder is within the scope of the Veteran’s claim for PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, this evidence is new and material and gives rise to a reasonable likelihood of substantiating a claim for service connection for an acquired psychiatric disorder. As such, the Veteran’s claim for service connection for PTSD is deemed reopened. 2. Entitlement to service connection for PTSD have not been met. At issue is whether the Veteran is entitled to service connection for PTSD. The weight of the evidence indicates that the Veteran is not entitled to service connection. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304. As previously noted, the Veteran was provided a personal hearing before the undersigned VLJ in April 2019, but the Veteran expressly declined to provide substantive testimony on the issue of entitlement to service connection for PTSD. See Transcript. As previously noted, the Board previously found that the Veteran had a diagnosis of PTSD in a January 2008 Board decision. The Veteran’s statements and treatment records indicate that the Veteran manifested psychiatric symptoms throughout the period on appeal. A June 2015 VA treatment record indicates that the Veteran was manifesting symptoms suggestive of a diagnosis of PTSD. The Veteran’s treatment records are otherwise silent for a diagnosis of PTSD throughout the period on appeal. The Veteran underwent a VA examination in June 2015. Although the Veteran was diagnosed with unspecified trauma and stressor related disorder, the examiner opined that the Veteran did not have a current diagnosis of PTSD. The Veteran underwent another VA examination in October 2017. Although the examiner noted a previous diagnosis of PTSD, the examiner diagnosed the Veteran with unspecified depression with anxious distress rather than PTSD. The weight of the evidence indicates that the Veteran does not have a current diagnosis of PTSD and did not manifest a diagnosis of PTSD throughout the period on appeal. The Veteran was provided two VA examinations during the period on appeal, and – although both VA examinations conceded that the Veteran manifested an acquired psychiatric disorder – neither examination included a diagnosis of PTSD. The VA examinations are based on reliable principles and methods applied to reliable facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such the Board affords them great weight and concludes that the Veteran does not have a current diagnosis of PTSD. A current diagnosis or a diagnosis during the pendency of the appeal is the cornerstone of a claim for service connection. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). As such without a current diagnosis, service connection for PTSD is precluded. The Board notes that the Veteran has a previous history of PTSD; both memorialized in the evidence of record and in a previous decision by the Board. Nevertheless, evidence that the Veteran manifested PTSD prior to the period on appeal is not sufficient to rebut two competent medical opinions that the Veteran’s symptoms more closely approximated a different acquired psychiatric disorders during the pendency of the appeal. The Board also notes that a June 2015 VA treatment record indicates that the Veteran was manifesting symptoms suggestive of a diagnosis of PTSD. Nevertheless, the Board cannot afford this treatment record much weight, because such an opinion is speculative in nature; indicating that the Veteran may (but then again may not) have PTSD. As such, the Board is precluded from relying on speculative medical opinions. Bostain v. West, 11 Vet. App. 124 (1998). Finally, the Board notes that – in reopening the Veteran’s claim for service connection for PTSD – the Board conceded that the Veteran had a reasonable likelihood of substantiating the Veteran’s claim. Nevertheless, this was based on the precedent that a claim for service connection for any acquired psychiatric disorder other than PTSD was within the scope of a claim for service connection for PTSD; see Clemons; and – although the Veteran had a reasonable likelihood of substantiating that claim and, as discussed below, did indeed substantiate that claim – service connection for PTSD without a diagnosis of PTSD is still precluded. See Degmetich. In sum, the weight of the evidence of record simply fails to demonstrate that the Veteran has a current diagnosis of PTSD or manifested a current diagnosis of PTSD throughout the period on appeal. Therefore, the evidence in this case is not so evenly balanced so as to allow the application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As such, entitlement to service connection for PTSD is denied. 3. 4. Entitlement to a compensable disability rating for an acquired psychiatric disorder to include an unspecified trauma and stressor related disorder and unspecified depression with anxious distress prior to August 21, 2017 is denied, and entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder to include an unspecified trauma and stressor related disorder and unspecified depression with anxious distress from to August 21, 2017 is granted. At issue is whether the Veteran is entitled to a compensable disability rating for an acquired psychiatric disorder, to include an unspecified trauma and stressor related disorder and unspecified depression with anxious distress, and in excess of 50 percent thereafter. The weight of evidence indicates that the Veteran is entitled to a disability rating of 50 percent, but no more, for an acquired psychiatric disorder from August 21, 2017, but the Veteran is not otherwise entitled to any increased disability rating at any point in time during the period on appeal. As discussed above, the RO originally denied the Veteran service connection for PTSD in September 2006. The Veteran appealed, and the decision was affirmed in a January 2008 final Board decision. The Veteran filed a claim to reopen his previously denied claim of entitlement to service connection, and, in June 2016, the RO granted service connection for an acquired psychiatric disorder (albeit one that was not characterized as PTSD) and assigned a noncompensable disability rating effective the date the claim to reopen was received. The Veteran appealed. During the pendency of the appeal, the Veteran’s disability rating was increased to 50 percent effective October 30, 2017. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for acquired psychiatric disorders are assigned pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a noncompensable disability rating is assigned when a mental condition has been formally diagnosed, but the symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, General Rating for Mental Disorders. A disability rating of 10 percent is assigned when an acquired psychiatric disorder manifests occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by continuous medication. Id. A disability rating of 30 percent is assigned when an acquired psychiatric disorder 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). Id. A disability rating of 50 percent is assigned when an acquired psychiatric disorder manifests 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. 38 C.F.R. § 4.130, General Rating for Mental Disorders. A disability rating of 70 percent is assigned when an acquired psychiatric disorder when an acquired psychiatric disorder manifests in 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 worklike setting); inability to establish and maintain effective relationships. Id. Finally, a total disability rating is assigned when an acquired psychiatric disorder manifests in 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 determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio. The Veteran’s statements and treatment records indicate that the Veteran manifested psychiatric symptoms throughout the period on appeal. The Veteran reported that he was prescribed medication for depression, but such a prescription was not memorialized in the treatment records in the claims file. The Veteran underwent a VA examination in June 2015. The Veteran reported that he had been married to his spouse for 46 years, but that his psychiatric symptoms caused sleep disturbances including sleep walking which would distress his spouse. The Veteran also had one adult child, and the Veteran was unable to articulate how, if at all, his acquired psychiatric disorder impacted his relationship with his daughter. The Veteran indicated that he had few close friends; regularly attended church; and enjoyed fishing. The Veteran stated that he was retired, but that he also worked part-time as a bus driver four hours a day five days a week. The Veteran denied any problems at work or periods on being unable to work. The Veteran denied absenteeism or problems at work due to his acquired psychiatric disorder. The examiner noted the following symptoms: recurrent, involuntary, and intrusive distressing memories of traumatic events; recurrent distressing dreams in which the content or affect of the dream are related to the traumatic events; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic events; and chronic sleep impairment. The examiner made the following observations: alert and oriented in all four spheres; good hygiene and grooming; linear and coherent thought processes; speech with normal rate, rhythm, and volume; fair mood; mildly blunted affect; and lack of suicidal or homicidal ideation. The examiner diagnosed the Veteran with an unspecified trauma and stressor related disorder, and the examiner opined that a mental disorder had been formally diagnosed; but that the symptoms were severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran underwent another VA examination in October 2017. The Veteran reported that he had been unemployed since August 21, 2017 due to a school bus accident. The Veteran indicated that he was still married to his spouse. The examiner noted the following symptoms: recurrent, involuntary, and intrusive distressing memories of traumatic events; recurrent distressing dreams in which the content or affect of the dream are related to the traumatic events; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic events; avoidance of or efforts to avoid distressing memories that arouse distressing memories, thoughts, or feelings about or closely associated with traumatic events; depressed mood; anxiety; chronic sleep impairment; flattened affect; disturbance of motivation or mood; difficulty adapting to stressful circumstances including work or worklike settings. The examiner made the following observations: adherence to civilian social conventions; adequate grooming; appropriate dress; clear, audible, logical, goal-directed speech; good eye contact; absence of bizarre gestures; affected responses were mood content congruent; absence of hallucinations, delusions, loose associations, or flight of ideas; denied any thoughts of harming himself, others, or property; and adequate insight and judgment. The examiner diagnosed the Veteran with unspecified depression with anxious distress, and the examiner opined that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The examiner indicated that the school bus accident, which occurred on August 21, 2017, had exacerbated the Veteran’s current psychological state. As previously noted, the Veteran was provided a personal hearing before the undersigned VLJ in April 2019, but the Veteran expressly declined to provide substantive testimony on the issue of entitlement to an increased disability rating for an acquired psychiatric disorder. See Transcript. The weight of the evidence indicates that the Veteran is not entitled to a total disability rating throughout the period on appeal. In order to meet the criteria for a total disability rating, the Veteran needed to manifest total occupational and social impairment. The evidence indicates that the Veteran was able to maintain a relationship with his wife throughout the period on appeal. Therefore, the Veteran was able to maintain relationships throughout the period on appeal and was not totally social impaired. Additionally, the Board notes that the record is silent for a medical opinion indicating that the Veteran manifested total occupational and social impairment. The Veteran is not entitled to a disability rating of 70 percent throughout the period on appeal. In order to meet the criteria for a disability rating of 70 percent, the Veteran needed to manifest occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and the weight of the evidence indicates that the Veteran does not meet these criteria. The Board notes that there is some evidence to suggest that the Veteran may have manifested deficiencies in some areas later in the period on appeal. For example, an October 2017 VA examiner opined that the Veteran manifested difficulty adapting to stressful circumstances including work or worklike settings; suggestive of deficiencies in the area of work. The VA examiner also noted that the Veteran manifested depressed mood as well as disturbances of motivation and mood; suggestive of deficiencies in the area of mood. Nevertheless, the weight of the evidence indicates that – although manifesting deficiencies in some areas – the Veteran did not demonstrate deficiencies in most areas throughout the period on appeal. VA examiners throughout the period on appeal indicated either that the Veteran manifested linear and coherent thought processes or was free from hallucinations, delusions, loose associations, or flight of ideas. As previously noted, the Veteran has been able to maintain a relationship with his wife throughout the period on appeal. The record does not indicate that the Veteran attended school during the period on appeal, but this does not suggest that the Veteran was deficient in the area of school; because retirees, like the Veteran. No medical opinion of record suggests that the Veteran manifested impaired judgment during the period on appeal, and, in October 2017, a VA examiner indicated that the Veteran manifested adequate insight and judgment. Finally, neither VA examiner opined that the Veteran manifested deficiencies in most areas. As such, the weight of the evidence indicates that – although the Veteran possibly manifested some deficiencies in the areas of work and mood during portions of the period on appeal – the Veteran did not manifest deficiencies in most areas and, as such, did not approximate the criteria for a disability rating of 70 percent closely enough to warrant such a rating at any time during the pendency of the appeal. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 50 percent from August 21, 2017. VA, based largely on the results of the October 2017 VA examination, previously found that the Veteran’s acquired psychiatric disorder had increased in severity to warrant a disability rating of 50 percent effective the date of the examination. Nevertheless, the VA examination results indicate the Veteran’s acquired psychiatric disorder was exacerbated after a motor vehicle accident which occurred on August 21, 2017. Therefore, the weight of the evidence indicates that the effective date of the Veteran’s disability rating of 50 percent should be August 21, 2017, because this is the date of the medically ascertainable cause of dramatic increase in the severity of the Veteran’s acquired psychiatric disorder. The weight of the evidence indicates that the Veteran is not entitled to a compensable disability rating prior to August 21, 2017. In order to meet the criteria for a compensable disability rating prior to August 21, 2017, the Veteran needed to manifest either 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; symptoms controlled by continuous medication; or occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran underwent a VA examination in June 2015. The Veteran indicated that – although retired – he was employed part-time, and he denied any problems at work or periods of time when he was unable to work. Additionally, the Veteran’s treatment records are silent for prescriptions for psychiatric medications prior to August 21, 2017. Therefore, the weight of the evidence indicates that the Veteran did not manifest decreases in work efficiency; inability to perform occupational tasks during periods of stress; or intermittent periods of inability to perform occupational tasks, and the Veteran did not required medication to control his symptoms. Therefore, the weight of the evidence indicates that the Veteran is not entitled to a compensable disability rating prior to August 21, 2017. The Board notes that the Board may not deny an increased disability rating based on the ameliorating effects of prescription medication unless those effects are contemplated by the schedular rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). The Board in this case has only taken the effects of prescription medication into account to the extent that it is contemplated by the General Rating Formula for Mental Disorders. In sum, the weight of the evidence of record indicates that the Veteran is entitled to a disability rating of 50 percent, but no more, from August 21, 2017. Therefore, the evidence in this case is evenly balanced so as to allow the application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating of 50 percent effective August 21, 2017 is granted.   5. Entitlement to TDIU is denied. At issue is whether the Veteran is entitled to TDIU. The Veteran did not appeal the issue of entitlement to TDIU, but entitlement to TDIU can be raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board was required to consider whether the Veteran’s previously service-connected acquired psychiatric disorder manifested in total occupational impairment. 38 C.F.R. § 4.130, General Rating for Mental Disorders. Therefore, the issue of entitlement to TDIU – which requires the Board to consider whether or not the Veteran’s previously service-connected disabilities prevent the Veteran from securing and maintaining substantially gainful employment – is raised by the record. 38 C.F.R. § 4.16. Veterans who are unable to secure and maintain substantially gainful employment due to their service-connected disabilities are entitled to be assigned TDIU; although the procedures for assigning TDIU vary depending on whether or not the Veteran meets certain schedular criteria. Id. In this case however, the Veteran does not meet the criteria for TDIU, because the Veteran’s disabilities did not prevent the Veteran from securing and maintaining substantially gainful employment throughout the period on appeal. The Veteran has been assigned service connection for the following disabilities: chronic kidney disease effective December 12, 2016; an acquired psychiatric disorder effective April 2, 2015; gastroesophageal reflux disease (GERD) effective August 1, 2005; neuropathy of the bilateral upper and lower extremities effective December 12, 2016; and type II diabetes effective May 2001. See February 2020 Rating Decision Code Sheet. As previously noted, the Veteran was provided a personal hearing before the undersigned VLJ in April 2019, but the Veteran did not discuss the issue of entitlement to TDIU. See Transcript. The record is silent for an examination evaluating the severity of the Veteran’s diabetes during the period on appeal. The most recent VA examination evaluating the severity of the Veteran’s diabetes prior to the period on appeal occurred in March 2008. During the examination, the Veteran was employed part time as a school bus driver and did not report interference with his work. The Veteran underwent a VA esophageal examination in June 2015. The examiner opined that the Veteran’s condition did not impact the Veteran’s ability to work. The Veteran underwent a VA psychiatric examination in June 2015. The Veteran stated that he was retired, but that he also worked part-time as a bus driver four hours a day five days a week. The Veteran denied any problems at work or periods on being unable to work. The examiner opined that a mental disorder had been formally diagnosed; but that the symptoms were severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran underwent another VA esophageal examination in January 2017. The examiner opined that the Veteran’s condition did not impact the Veteran’s ability to work. The Veteran underwent a VA diabetic neuropathy examination in March 2017. The examiner opined that the Veteran’s diabetic neuropathy impacts the Veteran’s ability to work by limiting his ability to perform employment that requires squatting, running, or excessive walking. The Veteran underwent a VA kidney examination in June 2017. The examiner opined that the Veteran’s condition did not impact the Veteran’s ability to work. The Veteran underwent another VA psychiatric examination in October 2017. The Veteran reported that he had been unemployed since August 21, 2017 due to a school bus accident. The Veteran indicated that he was still married to his spouse. The examiner noted that the Veteran manifested difficulty adapting to stressful circumstances including work or worklike settings. The examiner opined that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The weight of the evidence indicates that the Veteran’s previously service-connected disabilities do not prevent the Veteran from securing and maintaining substantially gainful employment. The Board notes that, during the period on appeal, a VA examiner indicated that the Veteran’s acquired psychiatric disorder caused the Veteran difficulty adapting to stressful circumstances including work or worklike settings, and the Veteran’s diabetic peripheral neuropathy limited his ability to perform employment that requires squatting, running, or excessive walking. Nevertheless, the Veteran’s most recent profession, driving a school bus, does not require squatting, running, or excessive walking, and repeatedly driving a school bus on a planned route would not often present the requirement to adapt to a great deal of changing circumstances. The Veteran’s lay reports of his work history as a school bus driver suggests that the Veteran’s has sufficient training, education, and experience to be a school bus driver, and the Veteran has not alleged that his employment as a school bus driver was ever less than substantially gainful. Finally, the evidence is silent for a medical opinion suggesting that the Veteran is unable to secure and maintain substantially gainful employment. Therefore, the weight of the evidence indicates that the Veteran’s previously service-connected disabilities do not prevent the Veteran from securing and maintaining substantially gainful employment. The Board notes that the Veteran has been unemployed since August 21, 2017 when he was in a motor vehicle accident, and it is reasonably foreseeable that this incident could potentially hamper the Veteran’s ability to secure and maintain employment as a school bus driver. The collateral consequences of the Veteran’s driving record, however, is ultimately distinguishable from whether or not the Veteran is medical capable of performing an substantially gainful occupation consistent with the Veteran’s education, training, and experience (in this case driving a school bus), and the medical evidence of record does not establish that the Veteran is medically incapable driving a school bus due to his service-connected disabilities. In sum, the weight of the evidence of record simply fails to demonstrate that the Veteran’s previously service-connected disabilities prevent the Veteran from securing and maintaining substantially gainful employment. Therefore, the evidence in this case is not so evenly balanced so as to allow the application of the   benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As such, entitlement to TDIU is denied DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.