Citation Nr: 20032899 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 17-36 760 DATE: May 12, 2020 ORDER Entitlement to an initial rating of 50 percent, and no higher, for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD), is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the Veteran’s psychiatric disorder has been productive of symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. Resolving all doubt in the Veteran’s favor, the probative evidence of record supports a finding that the Veteran has been unable to secure or follow substantially gainful employment as a result of the combined effect of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher of 50 percent, and no higher, for a psychiatric disorder, to include PTSD have been satisfied. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1969. In March 2020 the Veteran testified at a travel Board hearing before the undersigned. A transcript of the hearing is of record. 1. Entitlement to a disability rating higher than 30 percent for PTSD Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The Veteran contends that he is entitled to a rating higher than 30 percent for his service-connected PTSD. In statements and at hearing, the Veteran asserted that his symptoms were more severe than currently evaluated. The Veteran’s service-connected PTSD is rated under Diagnostic Codes 9411 which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a 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, Diagnostic Code 9411. A 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. 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); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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; and memory loss for names of closest relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir.2013). The symptoms listed are not exhaustive but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Global Assessment of Functioning (GAF) scores are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. VA implemented DSM-5, effective August 4, 2014, and the VA Secretary determined that DSM-5 applies to claims certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran’s increased rating claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. According to DSM-5, clinicians no longer typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons including its conceptual lack of clarity (i.e., including symptoms, the suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. VA treatment records in 2013 showed that the Veteran complained of one or two nightmares per month. He denied symptoms of depression, mania, panic, and auditory or visual hallucinations. He reported having a good relationship with his three living siblings and other family members. Mental status examination showed that the Veteran was casually and appropriately dressed. He was oriented times three. His behavior was appropriate. Thought processes were coherent and thought content was logical and goal-directed. He denied memory problems, suicidal or homicidal ideation. His symptoms were characterized as mild. On VA examination in December 2013, the Veteran endorsed involuntary and intrusive distressing recollections of the trauma, nightmares, avoidance of stimuli, hypervigilance, exaggerated startle response, impaired sleep, anxiety and suspiciousness. He denied being hospitalized for psychiatric or mental health reasons. The Veteran also denied past or present suicidal ideation or homicidal ideation. The examiner noted that these symptoms did not appear to be significantly impairing his social or occupational functioning. The Veteran reported being on his fourth marriage of six years. He described having a good relationship with his spouse. His first marriage at the age of 19 lasted four years due to his former spouse’s infidelity. He remarried a second time at the age of 25, for a couple of years. The Veteran married a third time at age 29 and this relationship lasted for 34 years until his former spouse became depressed over their daughter moving to a different state. He described having a very good relationship with his daughter. Educationally, the Veteran attained a bachelor's degree in history in 1971, a master’s degree in history in 1977, a degree in education, and a degree in mathematics in the early 80s, and a technology degree in 1987. The veteran worked as an educator for two school systems for 34 years prior to retiring in 2008. He also worked as an adjunct school faculty at a university for five years. At the time of the examination the Veteran was employed as a substitute teacher, working between 500 and 540 hours during the school year. The Veteran described getting along with coworkers and his employers, and his performance was consistently evaluated as excellent. The examiner opined that the Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In August and January 2015 PTSD Disability Benefits Questionnaires (DBQ), Dr. J. L, noted that the Veteran’s PTSD was manifested by symptoms of avoidance of stimuli, diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affection, sense of a foreshortened future, irritability, hypervigilance, difficulty concentrating, impaired sleep, anxiety depressed mood, flashbacks, panic attacks more than once a week, memory loss for names of close relatives or own, circumstantial circumlocutory or stereotyped speech, disturbances of motivation and mood, dutifully in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation and obsessional rituals which interfered with routine activities. Dr. J.L. noted that the Veteran’s social impairment had resulted in three divorces, and opined that the Veteran’s PTSD was productive of total occupational and social impairment. On VA examination in April 2015, the Veteran endorsed constant anxiety, daily panic attacks, impaired sleep, low-level of energy, concentration problems, hypervigilance, exaggerated startle response, nightmares, flashbacks, intrusive thoughts, avoidance of stimuli, irritability, problems with concentration, and depression. There was no history of inpatient treatment, only outpatient group counseling. The Veteran reported vague and passing suicidal thoughts. He denied having any homicidal thoughts. The examiner found that the symptom picture presented caused substantial impairment in his social and occupational functioning. The Veteran resided with his spouse and described the relationship as positive. He reported getting along with his daughter and being in frequent contact with her. He also had a good relationship with his three living siblings, stating that they were very close. His hobbies included hiking, exercising, and reading. He was active in his church and attended church activities regularly. The Veteran worked as a full-time teacher for 34 years before retiring in 2008. Thereafter he worked as a substitute teacher until he resigned in January 2015 after falsely being accused of inappropriate touching by a student. The examiner opined that the Veteran’s PTSD was productive of 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. VA treatment notes in 2015, described the Veteran as well-groomed and-casually dressed. The Veteran had good eye contact. His voice was of regular rate, rhythm and volume. His mood and affect were congruent and good. The Veteran was oriented to person, place, time, and purpose. He was alert. There was no apparent memory or concentration impairment. Insight and Judgment were good. His thoughts were linear and goal oriented. The Veteran’s behavior was appropriate and thought content was normal. He denied hallucination, delusions, suicidal or homicidal ideation. In August 2015 he reported having almost died the previous day while kayaking with his daughter. In October 2015, he reported that a lot of relatives and friends had died recently, and sister is on life support. His memory was diminished to 3/5. He endorsed hypervigilance and flashbacks. Progress treatment notes from Dr. J.L. from 2013 through 2018, noted that the Veteran endorsed symptoms of anxiety, altered sleep, panic attacks, flashbacks, compulsive behaviors and mood swings. He denied the majority of listed symptoms, including memory or concentration problems, suicidal thoughts, hallucinations or social anxiety. In a statement in October 2015, Dr. J.L. noted that the Veteran continued to meet the criteria for 100 percent for PTSD with worsening symptoms. Clinical treatment notes in 2016, recorded decreased concentration. The Veteran was described as high functioning, articulate and insightful. The Veteran appeared neat and clean with normal personal hygiene. He was cooperative and realistic. He presented as capable of managing the daily demands of living. The Veteran’s speech was clear and appropriate. He was alert and oriented to person, place, time and situation. His memory was intact, and he was able to maintain attention and focus. He did not display or describe any overt deficits in executive function, such as the ability to plan, organize, concentrate, or inhibit impulses. The Veteran denied significant anxiety including worry, shyness, panic attacks, phobias, obsessions/compulsions, or symptoms of PTSD. He neither described nor exhibited any psychotic symptoms, or endorsed any history of such. The Veteran, who had just returned from vacation in October 2016, reportedly enjoyed gardening and kayaking. Clinical treatment notes in 2017, recorded reports of intrusive thoughts, flashbacks, numbing, and avoidance. He was described as well-groomed with average eye contact. His speech was clear and relevant speech. Insight and judgment were good. During that time the Veteran was busy building a carport. He also traveled to Graceland for an Elvis vigil. VA treatment notes in 2018 showed complaints of impaired short-term memory, insomnia, irritability, agitation, hypervigilance, flashbacks, frustration, and some hopelessness. He denied hallucinations, delusions, or suicidal or homicidal ideation. The Veteran was alert and oriented. He was casually dressed and had good eye contact. Speech was normal. Thought process was linear. There was no evidence of psychomotor agitation or retardation. Insight and judgement were good. He remained active at church as superintendent of a Sunday school program and reported going fishing. He occasionally traveled outside of his home state for vacation. In May 2018, he shared that he had been elected to the board at his church and was in charge of managing Christian education programs. On VA examination in September 2019, the Veteran complained of concentration difficulties, hypervigilance, exaggerated startle response, avoidance of stimuli, anxiety, impaired sleep, recurrent intrusive distressing recollections of the trauma, nightmares and flashbacks. There was no history of psychiatric hospitalizations, or suicidal or homicidal ideation. The Veteran resided with his spouse of 12 years, and described having a good marital relationship. He also described having a positive relationship with his daughter and frequent contact with her. His younger sister died in 2017 of congestive heart failure and multiple infections. He reported having a very good relationship with his older sister and being in contact weekly. His recreational activities included reading and working around the house. The Veteran, who drove himself to the examination, continued to be actively involved with his church. The examiner opined that the Veteran’s PTSD was productive of 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. In a March 2020 private psychological evaluation report, following a review of the claims file, Dr J.H.P. noted multiple psychiatric symptoms, including depression, flashbacks, anxiety, exaggerated startle response, avoidance, hypervigilance, impaired sleep, nightmares, irritability, compulsive behaviors, impaired memory and concentration. Dr. J.H.P. opined that the Veteran met the criteria for a 70 percent disability rating for PTSD, and further opined that the Veteran’s psychiatric symptoms rendered him unemployable. There are significant and wide-ranging opinions in this case regarding the nature and extent of the Veteran’s problem. On review of the evidence of record, the Board finds that the Veteran’s psychiatric disorder most closely approximated the criteria for a 50 percent rating. Although the severity and frequency of symptoms varied throughout the appeal, the evidence shows that the Veteran reported symptoms of some sleep impairment, anxiety, irritability, depression, hypervigilance, panic attacks, exaggerated startle response, avoidance of stimuli, nightmares, flashbacks, compulsive behaviors, mood swings, impaired memory and concentration, and intrusive thoughts. Generally, he denied suicidal or homicidal ideation, plan or intent. There was no history of inpatient mental health treatment throughout the appeal and the Veteran stated he felt medication effectively managed his symptoms. The Board finds that the evidence of record does not support a disability rating higher than 50 percent at any point during the appeal period. The evidence does not show he has exhibited symptoms corresponding to a 70 percent rating during the appeal period, such as (for example only): 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; and the inability to establish and maintain effective relationships. There is a serious question in this case regarding if the Veteran has a 30%, 50%, or 70% disability regarding his PTSD. While the Veteran divorced three times and married four times, it is noteworthy that his first marriage ended due to his ex-spouse’s infidelity and his third marriage lasted 34 years, ending due to his former spouse’s inability to cope with their daughter moving out. More importantly, he has been married to his current wife for over 12 years and described having a good marital relationship. He also described being very close to his daughter and maintaining regular contact. He would occasionally go kayaking with her. The Veteran described having a close and positive relationship with other family members, including his siblings. The Veteran reported having friends. He was involved in his church and regularly participated in church activities, as much as six days a week, including running a Sunday school program as a superintendent. He was elected to the Board at his church and was put in charge of the Christian Education programs. The Veteran occasionally traveled out of state for vacation, and recreational activities included gardening, home projects, kayaking, fishing and reading. Much of the above does not support the Veteran’s claim. Educationally, the Veteran attained a bachelor’s and a master’s degree in history, a degree in education, a degree in mathematics, and a degree in technology degree. Occupationally, he worked in the school system for 21 years and was at a different school system 13 years prior to that. He also worked as an adjunct school faculty at a university for five years. Post-retirement, he remained employed as a substitute teacher for several years until he was falsely accused by a student of inappropriate conduct. Although he has recently reported that throughout his career, he worked in fear of being fired if he was found out to have PTSD, this report is inconsistent with prior statements by the Veteran who described getting along with coworkers and his employers. Significantly, he previously reported that throughout the years his performance was consistently evaluated as excellent. The Veteran’s mental health treatment providers generally described the Veteran as high functioning, articulate and insightful. He was appropriately groomed with good eye contact. He presented as capable of managing the daily demands of living. The Veteran’s speech was normal. He was alert and oriented to person, place, time and situation. Thought process was linear. There was no evidence of psychomotor abnormalities. Behavior was appropriate. Insight and judgement were good. Some memory and concentration impairment was noted during the appeal, but no more than moderate in severity. There was no evidence of psychosis. Most treatment providers and examiners characterized the Veteran’s symptoms as mild to moderate. Generally, with the exception of the DBQ reports from Dr. J. L. and the evaluation report from Dr. J.H.P., the Board finds that the examiners and mental health care providers who evaluated the Veteran described his occupational and social impairment as no more than moderate. To the extent that findings from Drs. J.L. and J.H.P. differed from other examiners and treating clinicians, the reports and their laundry list of symptoms are unsupported by the medical evidence, including progress notes from Dr. J.L, which clearly do not reflect total social and occupational impairment due solely to PTSD. Their reports are internally inconsistent and inconsistent with the evidence of record, and are not based on an accurate factual predicate as these ignore the Veteran’s own statements provided in connection with mental health treatment. Therefore, opinions offered by Drs. J.L. and J.H.P. are afforded on some probative value in determining the social, occupational and cognitive impairment caused by the Veteran’s psychiatric disorder and the severity of his symptoms. This does not suggest, in any way, that the Veteran does not have problems. A 50 percent disability evaluation will cause the Veteran many problems, as he has noted. The only question is the degree, based on the criteria cited above, nothing more. Simply stated, there is evidence in this record that does not support the 50% finding, however, there is enough to suggest a 50% rating is warranted. In sum, the Board finds that the criteria for a 70 percent rating have not been demonstrated. The evidence does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Nor is there symptomatology of similar severity, frequency and duration consistent with the criteria for a 70 percent rating. Therefore, the Board finds that the evidence does not more nearly approximate the criteria for a rating of 70 percent and a rating greater than 50 percent is denied. Accordingly, the Board resolves reasonable doubt in favor of the Veteran and finds that the criteria for a 50 percent rating, and no higher, for a psychiatric disorder, including PTSD, are met. A rating in excess of 50 percent is not warranted at any point during the appeal period. See 38 C.F.R. § 4.130; Fenderson, supra; Hart, supra. 2. Entitlement to a TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining gainful employment. In terms of total disability ratings, if the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. Marginal employment shall not be considered substantially gainful employment. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Service connection is currently in effect for: • PTSD, evaluated as 50% disabled; • Hearing loss, evaluated as 10% prior to September 29, 2017, and 40 % disabled thereafter; • Tinnitus, evaluated as 10% disabled; • Diabetes mellitus type II, evaluated as 10% disabled; • Obstructive sleep apnea, evaluated as 50% disabled; and, • Hypertension, evaluated as 0% disabled. The Veteran’s combined disability evaluation meets the schedular criteria for TDIU. The question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities, taking into account his educational and occupational background. As noted above, the Veteran attained a bachelor’s and a master’s degree in history, a degree in education, a degree in mathematics, and a degree in technology. Occupationally, he worked in the school and university systems as an educator for over 34 years. Concerning the Veteran’s psychiatric symptoms, a VA examiner in December 2013, the examiner opined that the Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. A VA examiner in April 2015, noted that the Veteran’s psychiatric symptom caused substantial impairment in his social and occupational functioning. On VA examination in April 2015 and September 2019, the examiner opined that the Veteran’s PTSD was productive of 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. In a medical statement in February 2020, a VA psychiatrist noted that due to service and nonservice connected disabilities, including sleep apnea, PTSD, diabetes, hypertension, tinnitus, hearing loss, atrial fibrillation and chronic obstructive pulmonary disease, the Veteran was not in a position to work and was unemployable. This opinion considered both service and nonservice-connected disabilities, thus it is entitled to limited probative weight. In a February 2020 statement, a VA social worker submitted a statement in support of the Veteran’s claim. The social worker indicated that he was a Licensed Clinical Social Worker (LCSW) and had a Master of Science in Social Work (MSSW), which is a therapeutic occupational role. The social worker noted symptoms of insomnia, severe night sweats, nightmares, intrusive thoughts, blunted affect, inability to trust others, hypervigilance, exaggerated startle response, and disconnection from others. The social worker determined that the symptoms had a dramatic effect on the Veteran’s ability to engage in normal life routines, such as spending quality time with friends and family. He also experienced difficulties in other areas, including intimacy and trust. Based on the Veteran’s presentation, the Veteran was not in a position to work and was unemployable. Although the opinion was prepared by neutral skilled professional, the Board affords his opinion significantly less probative weight than the opinions offered by the VA examiner, because the VA examiner has a greater level of training and expertise in the area of mental health disorders and based the opinions on review of the claims folder to include consideration of social worker’s treatment notes. While Drs. J.L. and J.H.P. stated that the Veteran’s psychiatric symptoms alone rendered him unemployable, as previously noted, the DBQs and evaluation reports with their laundry list of symptoms are unsupported by the medical evidence. Therefore, the opinions offered by Drs. J.L. and J.H.P. are afforded little probative value in determining the occupational impairment caused by the Veteran’s psychiatric disorder. Next, concerning the Veteran’s service-connected sleep apnea, a VA examiner in November 2014, opined that the disability resulted in disordered sleep with fatigue which affected his alertness and would impair his ability to effectively teach a class. On VA audiological examination in October 2017, the examiner noted that the Veteran’s hearing problems interfered with his ability to work. The examiner indicated that the Veteran’s hearing loss was productive of difficulty hearing and understanding conversational speech, especially in noisy environments or where multiple people were talking. Tinnitus was a nuisance and was bothersome, especially when the listening environment was very quiet. A VA examiner in December 2013 found that the Veteran’s hypertension had no impact on the Veteran’s ability to work. The Veteran’s diabetes mellitus is controlled by a restricted diet. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”). The Board finds that the weight of the evidence supports a finding that the combination of the Veteran’s service-connected psychiatric and physical disabilities, specifically his PTSD, which has been found to be productive of moderate impairment in a work setting, his sleep apnea, which impaired his ability to teach, and his hearing problems, with consideration of the Veteran’s employment history and his educational background, preclude him from securing or following a substantially gainful occupation. Therefore, a TDIU is granted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.