Citation Nr: 21000349 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-10 540 DATE: January 5, 2021 ORDER From March 4, 2004 to May 21, 2020, entitlement to an initial rating in excess of 50 percent for dysthymic disorder is denied. From March 4, 2004, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From March 4, 2004 to May 21, 2020, the Veteran’s psychiatric disorder, to include dysthymic disorder, is productive of, at worst, occupational and social impairment with reduced reliability and productivity due to such symptoms as: panic attacks more than once a week; impairment of short- and long-term memory; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships; depressed mood; and, chronic sleep impairment. 2. From March 4, 2004 to May 21, 2020, the Veteran’s psychiatric disorder, to include dysthymic disorder, is not characterized by exceptional symptomatology with marked interference with employment. 3. From March 4, 2004, the Veteran’s service-connected disabilities do not prevent him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From March 4, 2004 to May 21, 2020, the criteria for an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include dysthymic disorder, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9433. 2. From March 4, 2004 to May 21, 2020, the criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1987 to June 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 and December 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2018, the Board denied the Veteran’s claims for a rating in excess of 50 percent for an acquired psychiatric disorder and for a TDIU. The Veteran appealed the September 2018 Board decision to the Court of Appeals for Veterans Claims (CAVC). In a July 2019 Order, CAVC issued a Joint Motion for Remand (JMR) for the Board to address arguments raised by the Veteran in his Form 9 concerning his psychiatric symptoms and his arguments regarding the December 2015 examiner’s findings. The Board was also asked to address the Veteran’s July 2011 statements that his depression made it difficult for him to maintain employment and unemployment benefits are his only source of income, as well as statements from family and friends regarding his inability to maintain employment and his statements that his earnings were below the poverty line. In March 2020, the Board remanded the claim to obtain all records concerning private psychiatric treatment from 2006 to 2009 and a current VA examination. On March 18, 2020, the VA mailed the Veteran asking him to identify and obtain relevant outstanding private psychiatric treatment records, to include from 2006 to 2009. He was also asked to provide a comprehensive history of his employment and schooling since March 2004. To date, no such additional treatment records or employment and educational history has been received on the Veteran’s behalf. Following a VA examination, in June 2020, the RO granted an increased rating for dysthymic disorder, now evaluated as PTSD and rated 100 percent disabling, effective May 22, 2020. The record reflects fulfillment of the Veteran’s and attorney’s privacy act requests. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial rating in excess of 50 percent for dysthymic disorder from March 4, 2004 to May 21, 2020. The Veteran contends that his dysthymic disorder warrants a rating in excess of 50 percent. The Veteran has argued that his psychiatric disorder has warranted at least a 70 percent rating since March 2004. See March 2016 Substantive Appeal. A February 2013 rating decision granted service connection for dysthymic disorder and evaluated it as 30 percent disabling, effective March 4, 2004. The Veteran filed an April 2013 notice of disagreement (NOD). A June 2014 rating decision awarded the Veteran an increased evaluation of 50 percent effective from March 2004 for his dysthymic disorder. The Veteran filed an October 2014 NOD asserting an increased rating in excess of his 50 percent evaluation. His claim was continued in a September 2014 rating decision, which was appealed to the Board. Following a Board remand, in June 2020, the RO granted an increased rating for dysthymic disorder, now evaluated as PTSD and rated 100 percent disabling, effective May 22, 2020. The claim was then returned to the Board to consider entitlement to a higher rating prior to May 21, 2020. From March 4, 2004 to May 21, 2020, the Veteran’s psychiatric disorder was evaluated as a dysthymic disorder under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9433, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 50 percent rating is warranted 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; and/or 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); and/or inability to establish and maintain effective relationships. 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). In the Veteran’s March 2016 substantive appeal, his representative contended that a 70 percent evaluation was warranted. Specifically, the representative cited that the VA examiners noted difficulty in adapting to stressful circumstances. The representative argued that the evidence supported an inability to establish and maintain effective relationships; depression affecting the ability to function independently, appropriately, and effectively; and impaired impulse control. The representative stated that the VA examiners’ discussion made clear that these symptoms permeated the Veteran’s social and work life. The representative noted that depression and related sleeping problems were so severe that they caused the Veteran to be late to or miss work altogether, with estimated lost time at one day per week. The Veteran’s representative also stated that the December 2015 examiner noted occupational and social impairment with deficiencies in most areas. Finally, the representative argued for consideration on an extraschedular basis, based on exceptional symptomatology with marked interference with employment. In a March 2004 VA treatment record, the Veteran reported that depression is affecting his job performance, concentration, and sleep. His depression was treated with medication. He reported crying spells for the previous 5 days, sleeping seven hours per night, and experiencing tiredness, stress, lethargy and depression. He denied suicidal and homicidal ideation and any hallucination. He reported compulsions, feelings of loneliness, and feelings of wanting to take his anger out on others. November 2004 VA treatment record noted that the Veteran’s depression was well controlled but that he was having problems with his concentration and memory. His judgment was intact. May 2005 VA treatment record noted increasing episodes of fatigue and lack of motivation and lack of concentration. He was alert and oriented and did not appear slightly depressed. He denied suicidal ideation. November 2005 VA treatment record showed complaints of worsening depression. He stated that he falls asleep in classes and his energy and concentration has decreased. December 2005 VA treatment record noted that he likes to go dancing and sometimes feels hopeless. January 2006 VA treatment record showed no sleep or appetite problems, no crying spells and no suicidal ideations. Private treatment records reflect that in March 2007 the Veteran reported that his depression had been well-controlled on medication for about 10 years. In May 2007 he reported that his depression was not under good control, with increasing episodes of fatigue, lack of motivation, and lack of concentration. In August 2007 he reported depression and sought therapy. In September 2007 and in October 2007, he reported relationship issues. In May 2008, he reported marked depressive symptoms. April 2009 VA treatment record showed that the Veteran was anxious, depressed, and overwhelmed. In May 2009, he reported increased motivation, decreased irritability, and normal sleep. In June 2009 he reported being depressed over the prior two weeks due to financial problems. He stated that he did not like his job. In August 2009 he reported getting very anxious, depressed, and overwhelmed by a work deadline. In a July 2011 statement, the Veteran reported that he has difficulty maintaining steady employment due to his depression, which causes problems with memory, sleep, and concentration. He reported nightmares. He reported that his depression negatively impacted his finances and marriage, leading to separation. In an accompanying statement, a friend wrote that in the morning the Veteran was aching, moody, and unable to motivate himself to get out of bed, with feelings of underachievement and confusion. In an August 2011 statement in support of the claim, the Veteran asserted that his depression decreased his ability to concentrate and remember and recall information, people and places. The Veteran’s father stated that he has been unable to work for the past two years and had bouts of severe depression. See August 2011 Statement in Support of Claim. VA treatment records reflect that in September 2011, the Veteran reported passive thoughts of death, depressed mood, insomnia, decreased energy, concentration problems, and reduced self-esteem. In October 2011, he had some interference with interpersonal relationships. January 2013 VA examination showed that, overall, the Veteran exhibited 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. He had symptoms of depressed mood; chronic sleep impairment; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and, insomnia. He denied suicidal thoughts and experiencing anxiety. He continued to have crying spellings and struggled with irritability but denied experiencing anger outbursts. He had difficulty focusing and concentrating. He stated that he prefers to be alone and at times has low self-esteem. He denied homicidal ideation and hallucinations. He had feelings of worthlessness, impaired concentration, irritability, feelings of helplessness, and had low energy and motivation. He stated that he had separated from first wife, lives alone, attends medical courses, cooks, and watches television. He attends church once a month, where he enjoys playing piano. December 2015 VA examination showed 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. The Veteran was active in church, including participating in additional activities including bible study and playing piano. Although he stated that he is cordial and social while at church, he denied having friendships. He stated that he saw his mother twice per week and speaks regularly with his brother and cousin. He denied other social supports but alluded to dating casually. He stated that he avoids going out during peaks times due to his depression and is forgetful. Additionally, he stated that he is easily stressed from work. However, he has received good performance feedback and described his relationship with his supervisor as “great.” The Veteran reported that he misses a day of work per week, in part, due to his depression. He endorsed anxiety symptoms consistent with depression, primarily worry and irritability but denied marked physiological anxiety or panic. He stated that he sometimes loses his temper and raises his voice toward loved ones or coworkers. Although reported irritability, he denied aggressiveness and destructiveness. He had trouble sleeping. His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. March 2020 VA treatment records show that the Veteran reported he had been working in his current position for over three years and had no complaints about his job. He reported some episodes of tearfulness occurring unprovoked. He had been exercising more and reports this helps his depression. He had no more symptoms of mania/hypomania. His symptoms included depression for more days than not for over two years, anhedonia, feelings of worthlessness, impaired concentration, irritability, low self-esteem, crying spells, feelings of hopelessness, feelings of helplessness, low energy, and low motivation. His mood was described as “fine,” and not suicidal or homicidal. He experienced brief periods of irritability. Concentration problems were present, but most days were described as “okay.” He reported mild to moderate marital conflict with his wife of 2.5 years. He stated that he sleeps “pretty well” and that he had “no problem sleeping at all.” Although the Veteran’s representative stated that the December 2015 examiner noted occupational and social impairment with deficiencies in most areas, a review of the record shows that the examiner instead noted an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Such level of impairment does not warrant a rating in excess of 50 percent. Regarding the Veteran’s contentions with respect to his symptoms, March 4, 2004 to May 21, 2020, although he had depression affecting some areas of his life, including his sleep, mood, stress-level, and interpersonal relationships, it was not shown to near-continuously affect his ability to function independently, appropriately, and effectively, as reflective of the higher rating of 70 percent. Although the Veteran’s representative argues that the Veteran has impaired impulse control with periods of violence, March 4, 2004 to May 21, 2020, his impulses have not been shown to be more than mildly impaired or to result any violence. Indeed, the Veteran has shown continued unprovoked crying spells and some irritability, which he reported as brief. However, neither have result in periods of violence. Although the Veteran has reported that he has raised his voice toward coworkers or family members, he denied any aggressiveness or destructiveness. He reported his overall mood as “fine.” Further, throughout this period, he has denied suicidal and homicidal ideations. The Veteran’s representative has argued that the Veteran’s December 2015 VA examination noted difficulty in adapting to stressful circumstances, which is consistent with a 70 percent rating. Indeed, such difficulty in adapting (including work or a work-like setting) is consistent with a 70 percent rating. However, the demonstration of this single symptom does not, by itself, support that his psychiatric disability is, overall, productive of occupational and social impairment in most areas. The Board must consider the Veteran’s overall disability picture and the medical examiners considered the Veteran’s overall symptoms in determining that he did not meet the higher criteria. Here, the Veteran did not demonstrate any additional symptoms associated with a 70 percent rating, and to the contrary, most of his symptoms were consistent with the 50 percent rating, at worst. In this regard, the Board has considered the overall disability picture, to include the severity, frequency, and duration of the manifestations of this disability, to include those listed in the schedule and those that are not. After this review, the Board finds that the disability most closely aligns with the level of functional disability considered by the level of occupational and social impairment noted by the current 50 percent rating, and that there is not reasonable doubt in this regard. Additionally, although he has reported some stress, the Veteran’s overall work performance has been positive, and he has even received recognition at work. From March 4, 2004 to May 21, 2020, although he has reported raising his voice at his coworkers, he described his relationships with his supervisor and as “great” and stated that he enjoys his work. He experienced brief periods of irritability and concentration problems were present, but most days were described as “okay.” Although the Veteran’s representative contends that he showed an inability to establish and maintain effective relationships, as discussed above, he reported positive relationships at his workplace. Additionally, he retained relationships with his family members and participated in social activities at church. Although he reported that he did not develop friendships at church and reported mild to moderate marital conflict with his wife of 2.5 years, he has not been shown to be unable to maintain effective relationships, as required for a higher 70 percent rating. He also was able to maintain relationships as demonstrated by his continuous involvement in social groups at church, “great” relationships with those he worked with, remained married to his spouse without significant conflict, and maintained regular communication with family. At worst, from March 4, 2004 to May 21, 2020, he exhibited some difficulty in establishing and maintaining such relationships, which is consistent with his current 50 percent rating. Furthermore, the evidence also does not demonstrate that the Veteran experiences any symptoms associated with a rating higher than 50 percent. He has not demonstrated, such symptoms as suicidal and homicidal ideations, gross impairment of thought process or communication, delusions or hallucinations, grossly inappropriate behavior, inability to perform activities of daily living. There are no other symptoms reflected by the evidence which are similar in severity to those symptoms contemplated by the higher rating criteria and which might otherwise warrant a higher rating. Based on the above and a careful review of the Veteran’s records and his assertions, the Board finds that a rating in excess of 50 percent is not warranted at any time from March 4, 2004 to May 21, 2020. To the contrary, his symptoms are encompassed by a 50 percent rating, to which he is currently assigned. The Board has also considered how the Veteran’s symptoms impact his occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). From March 2, 2004 to May 21, 2020, the medical evidence, to include examinations of record, show that his psychiatric disorder has exhibited, at worst, 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/or difficulty in establishing and maintaining effective work and social relationships. This level of impairment is consistent with a 50 percent evaluation, and no higher. All ratings in the General Rating Formula are 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. Therefore, the Veteran may only qualify for a higher rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Accordingly, as the Veteran at no point demonstrated symptomatology consistent with a higher rating from March 4, 2004 to May 21, 2020, a claim for a rating in excess of 50 percent during that time period must be denied on a schedular basis. The Veteran’s representative has also argued for consideration on an extraschedular basis, based on exceptional symptomatology with marked interference with employment. In exceptional cases, an extraschedular rating may be provided. 38 C. F. R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321 (b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). When the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step—a determination of whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. Thus, the question the Board has been presented with is whether the Veteran’s symptomatology was exceptional with marked interference with employment. The representative noted that depression and related sleeping problems were so severe that they caused the Veteran to be late to or miss work altogether, with estimated lost time at one day per week. The Veteran has indeed reported missing work, though he stated it was only in part due to his depression. Although he has contended that he has missed some work, he specified this was due mostly to not waking up in time because of his chronic sleep impairment. Such symptom is associated with a 30 percent rating and is anticipated by the schedular criteria. The Board recognizes that his sleep impairment has contributed to him missing work. However, this symptom is compensated by his current rating of 50 percent and does not contribute to what the VA would regard as a marked interference since he indicated that he continued to work regularly despite this condition. His sleeping impairment was not otherwise noted to impact other areas such that his symptoms extend beyond that which is compensated by his current rating criteria. The Veteran has also indicated that he sometimes takes a break from work to cope with his depression. Such break appears consistent with changes in mood, to include crying spells and stress. This difficulty adapting to stressful circumstances within the workplace is also compensated by his 50 percent rating, and is not shown to be exceptional. Finally, the Veteran has not been hospitalized at all during the appeal period; indeed, there are lengthy times during which he received no treatment at all for his disability. There is no indication that the Veteran’s psychiatric symptoms occurred with such severity, frequency, or duration that they were beyond the level of impairment contemplated by the 50 percent rating, let alone exceptional in degree. For example, he was able to maintain “great” relationships with those he worked with and further indicated past history of stable employment, denying that mental health symptoms interfered with his work, other than partly contributing to him missing one day from work per week. Thus, the Board finds that the Veteran’s symptoms of chronic sleep impairment and difficulty adapting to stressful circumstances at work, though causing some disruption to his regular attendance, do not amount to exceptional symptomatology or marked interference with his employment. The Board finds that the most probative evidence of record are the VA examinations, as they are the only medical opinions of record. These examinations document the Veteran’s symptoms and consider the lay evidence of record. These examination reports support a finding that this disability is 50 percent disabling, based on the overall social and occupational impairment. The Veteran’s 2013 VA examination indicated that the Veteran’s psychiatric condition does not impair his ability to engage in physical and sedentary forms of employment. The Veteran has not presented or identified any contrary medical opinion or treatment that supports that a higher rating is warranted. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board has also considered the Veteran’s lay statements and his representative’s assertions. The Board finds that such contentions correspond with the 50 percent rating criteria. To the extent that his assertions extend beyond immediately observable symptom manifestations, such as the severity of the symptoms, this is the type of testimony that the courts have found to be beyond the competency of lay witnesses. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board finds that the Veteran’s lay statements are less probative than the medical evidence regarding the overall social and occupational impairment due to his psychiatric symptoms. To the extent that the Veteran argues his symptomatology is more severe than shown on evaluation, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. The Board concludes that the evidence weighs against finding that the Veteran’s symptomatology was exceptional with marked interference on employment. Accordingly, the Board finds that the preponderance of the evidence weighs against finding referral for extraschedular consideration at any time from March 4, 2004 to May 21, 2020. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran contends that from March 2004, his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. The VA received the Veteran’s application for increased compensation based on unemployability in June 2013. However, prior to receipt of his formal claim, in an August 2011 Statement in Support of Claim, the Veteran indicated that he had difficulty maintaining steady employment due to his psychiatric disability. He further stated that he felt the primary reason was because his depression decreased his ability to concentrate, remember and recall information, people and places. Private psychiatric treatment records received in August 2011 that in April 2009, the Veteran reported feeling stressed on the job. As such, a claim for TDIU was reasonably inferred from the record and the current appeal stems from the claim for increased compensation. Thus, as in Harper, the issue of entitlement to TDIU was part and parcel of the Veteran’s underlying psychiatric disorder claim. Harper, 30 Vet.App. at 359. Here, the Veteran has attributed his unemployability, at least in part, to his psychiatric disorder. The claim for TDIU became part and parcel of the underlying claim before the Board. Harper, 30 Vet. App. at 359; see also Rice v. Shinseki, 22 Vet. App. 447 (2009); Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the Veteran 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 at least one is ratable at 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). In this case, from March 4, 2004 to May 21, 2020, the Veteran was in receipt of a combined disability rating of 50 percent for his service-connected disabilities, which included his psychiatric disorder and TMJ disease. From May 22, 2020, the Veteran has been awarded a 100 percent rating for PTSD. As the Veteran reached the maximum benefit for compensation after May 22, 2020, consideration for TDIU after such date would be moot. From March 4, 2004 to May 21, 2020, the Veteran did not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). The Veteran has asserted that from March 4, 2004, extraschedular referral to the Director of Compensation is warranted. When a Veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), discussed above, the case may be submitted to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b). Entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background, including his or her employment and educational history. 38 C.F.R. § 4.16(b). If the Board finds that extraschedular consideration is warranted, then the case should be remanded to the RO for referral to the Director of Compensation Service. The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board finds that from March 4, 2004 to May 21, 2020, the criteria for TDIU consideration by the Director on an extraschedular basis are not met. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Veteran’s June 2013 Application for Increased Compensation based on Individual Unemployability, he stated that he last worked full-time in October 2011 and became too disabled to work in March 2012. He stated that he left his place of last employment at a retail store because he could not handle the pressures of the job. He reported that since March 2012, his service-connected disabilities alone were of sufficient severity to render him unable to secure and maintain substantially gainful employment. Evidence of the records reveals that prior to March 2012 the Veteran was last employed as a logistic analyst. Additionally, he reported that since May or June 2013, he has been working full-time as a medical support assistant/biller for a private company. The Veteran has argued that for a large period of time prior to August 2013, he was unable to hold a job and should be granted TDIU for that period. The Veteran has asserted that his depression made it difficult for him to maintain employment and his unemployment benefits are his only source of income. He further indicated that his depression decreased his ability to concentrate, remember and recall information, people and places. He has also contended that his earnings fall below the poverty line. See August 2011 Statement in Support of the Claim. On March 18, 2020, the VA mailed the Veteran asking him to identify, obtain and provide a comprehensive history of his employment and schooling since March 2004. To date, no such additional employment and educational history has been received on the Veteran’s behalf. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience. The main question before the Board is whether from March 2004, the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore, supra. Upon review of the record, the Board finds that during the entirety of the appeal period the Veteran was generally employed substantially gainfully, and his employment was only “marginal” as that term is used in 38 C.F.R. § 4.16 (a) in 2012. However, the record does not show that the Veteran’s marginal employment was solely the result of his service-connected disabilities. Although the Veteran was employed part-time or unemployed for some of the period on appeal, his employment was still, overall, considered substantially gainful. According the Census, in 2004, the poverty threshold for a single person was $9827. In 2005, the poverty threshold was $10,160. In 2006, the poverty threshold was $10,488. In 2007, the poverty threshold was $10,787. In 2008, the poverty threshold was $11,201. In 2009, the poverty threshold was $11,161. In 2010, the poverty threshold was $11,344. In 2011, the poverty threshold was $11,702. In 2012, the poverty threshold was $11,945. In 2013, the poverty threshold for a single person was $12,119. On the Veteran’s resume, he reported that from January 2004 to January 2006, he worked as a university lab assistant earning $8 per hour for a total of 40 hours per week. This amounts to $1280 per month, which equates to $15,360 annually. From January 2006 to July 2006, he reported working at a staffing agency with reported earnings of $2400 monthly. From July 2006 to August 2009, he reported working as a logistical analyst earning an annual income of $32,000 annually. He reported that from January 2010 to May 2010, he worked as a teacher earning $2500 monthly. From May 2010 to August 2012 he reported that he was unemployed and received $1200 monthly, which equates to $14,400 annually. Based on the above, his reported income from August to December 2012 reduced his annual income to $9600, falling below the poverty threshold for that year. From February 2013 to March 2013, he reported that he worked 40 hours per week as a medical assistant; earnings were not reported. In his Application for Increased Compensation Based on Unemployability, he indicated that from January 2010 to May 2010, he earned $3000 monthly while working as a teacher. He indicated that from June 2010 to February 2011, he earned $2000 monthly while working as a bus owner. From February 2011 to March 2011 and from June 2011 to October 2011, he indicated that he earned $2400 monthly while working in a temporary position. From November 2011 to March 2012, he indicated that he earned $800 monthly working as an inventory clerk. On his Rehabilitation Needs Inventory Form, he reported earning $2400 monthly from August 2011 to December 2011 and additionally earning $600 monthly from October 2011 to March 2012. From June 2013, the records reveal that the Veteran has generally had consistently and continuous full-time employment wherein he earned above the poverty threshold. Since he has been shown to have full-time employment beginning approximately between May and August 2013, the Board will only consider entitlement to TDIU from March 2004 to August 2013. The Board notes some variances in salary from March 2012 until August 2012. However, based on the above self-reporting, he earned above the threshold during the entire period, except for marginal employment in 2012. Here, the evidence shows that the Veteran has been consistently employed throughout the period on appeal. The Board finds that the Veteran’s income exceeded the poverty thresholds for those years, except for in 2012, the Veteran’s employment was substantially gainful, and entitlement to a TDIU is not warranted. The evidence also indicates that there were times when the Veteran’s employment was marginal, as his annual salary was below poverty level in 2012. Based on the above, the Veteran’s part-time employment was marginal in 2012 because his annual income was below the poverty line. The question remaining is whether the Veteran’s service-connected disabilities alone precluded him from obtaining substantially gainful employment in 2012. The crucial inquiry for the Board is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose, 4 Vet. App. at 363. The fact that the Veteran had times of marginal employment is not enough. It must be determined that his service-connected disorders make him incapable of performing the acts required by employment. Id. The Board has considered the Veteran’s prior education, training, and work experience. However, the evidence of record does not reveal occupational or functional impairment in 2012 to indicate that service-connected disabilities precluded him from substantially gainful employment. Review of the claims folder treatment records since March 2004 reveals a history of the Veteran attending college and graduating with a degree in 2005. He holds a bachelors degree in medical assisting and has multiple professional certifications. Records indicated that he worked for an electronics company from November 2011 to March 2012. At some time during this period he went back to school and in 2013 was in training to become a medical assistant. December 2019 private Vocational Assessment Report indicated that the Veteran has been employed continuously on a full-time basis as a program specialist since August 2013. Following a January 2013 VA examination, the examiner opined that the Veteran’s psychiatric condition does not impair his ability to engage in physical and sedentary forms of employment. Following both the January 2013 and a December 2015 VA examination, the examiner opined that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In a December 2019 Vocational Rehabilitation Report, a private vocational counselor opined that it is at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment, to include either skilled or unskilled work, due to his service-connected psychiatric condition since at least March 2004, until August 12, 2013. The vocational counselor reasoned that the inability to perform the essential job tasks and/or decreased work efficiency and productivity, as cited by the VA examiners, would not be tolerated by any employer at any skill level, as evident by the Veteran’s inconsistent vocational history. The Board acknowledges that the private vocational expert is competent and credible to provide an opinion regarding the impact the Veteran’s psychiatric disorder had on his employment from March 2004. However, the Board finds that the Veteran’s medical records show that his service-connected disabilities did not, alone, render him unemployable or show total impairment such that he would be limited to marginal employment. In conjunction with his medical treatment, he reported that although his depression on occasion impacted his ability to work, he only reported missing work during one year. Although detailed in the overall report, the private vocational expert’s reasoning that an inability to perform specific jobs tasks and decreased work efficiency render the Veteran unemployable altogether, is inconsistent with his work history, which shows continued employment with gaps of unemployment. This inconsistently in the report greatly reduces the reports probative value based on the expert’s failure to fully consider the Veteran’s actual work history, to include considering or explaining the Veteran’s other periods of sustained employment. Although the vocational expert listed his psychological impact as having a more severe impact on his jobs during the appeal period, the most probative evidence of record shows that his psychiatric disability did not cause an inability to sustain substantial gainful employment. Although the report contains a detailed history of the Veteran’s psychiatric symptoms, the opinion is less probative than the medical opinions regarding whether his service-connected disability rendered him unemployable (marginally) in 2012. The opinion states that the Veteran’s unemployability in 2012 was significantly impacted by his psychiatric disability. The vocational expert’s findings are simply not reflective of consideration of the record as a whole, and are outweighed by the contrary evidence detailed in this decision. The vocational expert’s opinion is less probative than the great weight of the other evidence of record. Therefore, the Board gives greater probative value to the overwhelming medical documentation of record that shows that the Veteran’s marginal employment in 2012 was not caused by his service-connected disabilities. In sum, the Board does not doubt that the Veteran’s service-connected disabilities have some impact on his employability. However, the 50 percent schedular evaluation for his service-connected psychiatric disorder and combined evaluation in effect in 2012, recognizes any impairment resulting from his disorder. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding that from March 2004, his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Veteran has contended that his employment was not substantially gainful, asserting that his income fell below the poverty threshold. The Board finds that the preponderance of the evidence shows that Veteran was not precluded from obtaining and maintaining gainful employment consistent with his education and occupational experience due to his service-connected disabilities from March 2004. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki,733 F.3d 1350 (2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floor v. Shinseki, 26 Vet. App. 376, 381 (2013). In this regard, the functional effects resulting from the Veteran’s service-connected disabilities as assessed by the VA examiners are highly probative. Although the evidence shows gaps in employment, it does not support a finding that the Veteran was unable to secure and maintain substantially gainful employment. As the evidence does not reflect that his service-connected disabilities prevented him from securing and following substantially gainful employment from March 2004, referral for extraschedular consideration is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.