Citation Nr: 21000504 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-11 076 DATE: January 5, 2021 ORDER Entitlement to initial ratings in excess of 30 percent prior to October 21, 2014 and in excess of 70 percent from May 12, 2015 to December 15, 2016 for an acquired psychiatric disorder, to include generalized anxiety disorder, major depressive disorder, and adjustment disorder (hereinafter acquired psychiatric disorder), is denied. An initial rating of 50 percent from October 21, 2014 to March 25, 2015 for an acquired psychiatric disorder, is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial rating of 70 percent from March 25, 2015 to May 12, 2015, for an acquired psychiatric disorder, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 21, 2014 is denied. Entitlement to a TDIU from October 21, 2014 to December 15, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. For the period prior to October 21, 2014 the Veteran’s acquired psychiatric disorder was productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from October 21, 2014 until March 25, 2015 the Veteran’s acquired psychiatric disorder was productive of no more than occupational and social impairment with reduced reliability and productivity. 3. For the period from March 25, 2015 to December 15, 2016, the Veteran’s acquired psychiatric disorder was productive of no more than occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 4. For the period prior to October 21, 2014, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. 5. For the period from October 21, 2014 to December 15, 2016, it is reasonably shown that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the period prior to October 21, 2014, the criteria for a rating in excess of 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9440. 2. For the period from October 21, 2014 to March 25, 2015, the criteria for a 50 percent rating, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9440. 3. For the period from March 25, 2015 to May 12, 2015, the criteria for a 70 percent, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9440. 4. For the period from May 12, 2015 to December 15, 2016, the criteria for a rating in excess of 70 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9440. 5. For the period prior to October 21, 2014 the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.3, 4.16. 6. For the period from October 21, 2014 to December 15, 2016, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1977 to November 1980. This matter comes before the Board of Veteran Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO), which granted service connection for acquired psychiatric conditions, rated at 30 percent, effective March 27, 2013. An April 2017 rating decision granted a 70 percent rating for the Veteran’s acquired psychiatric conditions, effective May 12, 2015 and a 100 percent rating, effective December 12, 2016. The Veteran seeks an evaluation of greater than 70 percent with an effective date earlier than May 12, 2015, and a 100 percent evaluation with an effective date earlier than December 15, 2016. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Although the Regional Office (RO) characterized the Veteran’s appeals as claims for earlier effective dates of awards, the Veteran has shown disagreement with the initial ratings assigned from March 27, 2013 to December 15, 2016 for his acquired psychiatric disorder. Therefore, the Board has recharacterized the issues to reflect that “staged” ratings are assigned. See AB v. Brown, 6 Vet. App. 35 (1993). Notably, in this instance, it is more favorable for the Veteran to pursue an increased initial disability claim versus an earlier effective date claim; therefore, he is not prejudiced by the recharacterization of his claims as for higher initial disability “staged” ratings. Increased Ratings Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to higher initial ratings for an acquired psychiatric disorder. The Veteran’s acquired psychiatric disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9440. As noted above, he is currently assigned a 30 percent rating prior to May 12, 2015 and a 70 percent rating from May 12, 2015 to December 15, 2016. From December 15, 2016, the Veteran’s acquired psychiatric disorder is assigned a 100 percent rating; as this is the maximum rating available, this decision will focus only on whether higher initial ratings are warranted prior to December 15, 2016. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for occupational and social impairment with occasional decreases 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 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is warranted when there is total occupational or 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. A review of the claims file shows that in July 2014, the Veteran underwent a VA psychiatric examination. The examiner indicated the Veteran met the criteria for an acquired psychiatric disorder secondary to his service-connected tinnitus. During the examination, the Veteran reported symptoms including depressed mood that led him to lie in bed for longer periods of time roughly four days a week; chronic sleep impairment; and mild memory loss such as forgetting names, directions, or recent events. He denied any current suicidal or homicidal ideation, and also denied any suicide attempts. He did, however, have impaired impulse control such as unprovoked periods of irritability without violence. He denied persistent delusions or hallucinations. He reported that he spent his day walking, keeping busy by watching television, and staying on the Internet. Socially, the Veteran described himself as withdrawn and isolative and noted that a couple of times a month, he would see two childhood friends, but not often. Occupationally, the Veteran reported retiring in January 2014, having worked continuously without issue. The examiner opined that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity. A September 2014 disability benefits questionnaire conducted by the Veteran’s private psychiatrist reported that the Veteran suffered from depressed mood; anxiety; chronic sleep impairment; disturbances in motivation and mood; difficulty in establishing and maintaining effective work relationships; and an inability to establish and maintain effective relationships. The private psychiatrist also noted that the Veteran suffered from social isolation. He diagnosed major depression and indicated that the Veteran’s symptomatology represented 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 October 2014, the Veteran underwent a private psychiatric examination by Dr. J.M. to independently evaluate the severity of his mental health disorders. Dr. J.M. noted that the Veteran’s overall presentation was poor and that he would get sidetracked while answering questions. Dr. J.M.’s notes indicate that the Veteran exhibited a symptomatology consisting of difficulty with verbal comprehension; dysphoric affect; dysthymic mood; short and long-term memory deficits; concentration deficits; organization difficulties due to cognitive symptomatology; difficulty with verbal comprehension; intellectual functioning below average; lack of socializing; moderately to markedly impaired performing new tasks independently; moderately impaired appropriately dealing with stress; and moderately impaired recent and remote memory skills. However, he was also noted to be cooperative; appropriately dressed and groomed, with normal motor behavior and appropriate eye contact; fluent in his speech; coherent and goal directed with no evidence of hallucinations, delusions, or paranoia in his thought process; oriented in all three spheres; and with fair insight and judgment. Dr. J.M. concluded that the Veteran’s acquired psychiatric disorders might moderately to significantly interfere with his ability to function on a daily basis. Moreover, Dr. J.M. opined that as a result of his condition, the Veteran would need assistance in managing his funds due to memory and concentration problems. Medical records furnished by the Social Security Administration (SSA) provide further insight into the Veteran’s condition. Specifically, a December 2014 mental residual functional capacity assessment documented psychiatric symptoms consisting of sustained concentration and persistence limitations; moderately limited ability to maintain concentration and attention for extended periods; moderately limited ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; a moderately limited ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; adaption limitations; moderately limited ability to respond appropriately to changes in the work setting; moderately limited ability to set realistic goals or make plans independently of others; partially credible allegations that the Veteran is prone to violence; and dysthymic mood. The Veteran underwent another private psychiatric evaluation in March 2015. The private psychologist, H.H.G. Ph.D., documented that the Veteran struggled at attending to his personal hygiene, noting that he rarely shaved, and showered approximately every three days. Additionally, H.H.G. Ph.D.’s examination notes include symptoms such as social isolation; depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; neglect of personal appearance and hygiene. H.H.G. Ph.D. opined that the Veteran’s diagnosed acquired psychiatric disorder and social impairment were emotionally debilitating and resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Moreover, she held that individuals with similar symptomatology typically had few friends and lacked the ability to maintain a job. Ultimately, H.H.G. Ph.D. expressed that the service-connected hearing loss, tinnitus and secondary adjustment disorder endured by the Veteran, rendered him incapacitated. a. Entitlement to a rating in excess of 30 percent for acquired psychiatric disorders prior to October 21, 2014. After reviewing the foregoing evidence, the Board finds that a rating in excess of 30 percent is not warranted for the period prior to October 21, 2014, as the Veteran did not demonstrate the symptomatology reflective of the criteria for a 50 percent rating. In that regard, the evidence 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 routine behavior, self-care and normal conversation). While the July 2014 VA examiner opined that the Veteran suffered occupational and social impairment with reduced reliability and productivity, which would indicate a rating of 50 percent, the Board nonetheless finds that a 30 percent rating is more closely approximated for that time period as the Veteran’s symptoms were not of such a severity or frequency to result in the higher rating. Furthermore, the Veteran lacked symptoms associated with a 50 percent rating including flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks; difficulty in understanding complex commands; impairment of long-term memory; and impairment of abstract thinking. Despite the Veteran’s symptoms including social isolation, chronic sleep impairment, concentration issues, depressed mood resulting in lying in bed for longer periods of time, mild memory loss such as forgetting names, directions or recent events, and impaired impulse control to include unprovoked periods of irritability without violence, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including a work-like setting, and an inability to establish and maintain effective relationships, the record does not show that the Veteran otherwise suffered from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to a 50 percent disability rating. See July 2014 VA Examination; see also September 2014 DBQ. In this regard, despite the Veteran’s reports of social isolation, it is noted that he maintained a relationship with two childhood friends who he saw roughly twice a month, attended church twice a month, and attended a sporting event once a month. See medical treatment records furnished by SSA. Furthermore, while the Veteran displayed examples impaired impulse control, these isolated events did not involve violence. Additionally, the examiner who conducted the July 2014 VA examination held that the Veteran was capable of managing his financial affairs. Notes from the Veteran’s private psychiatrist, Dr. J.H., who had been treating the Veteran for more than a year at the time of his report, also support a 30 percent rating. Specifically, Dr. J.H., opined in September 2014 that the Veteran’s symptomatology resulted in 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). This description is consistent with a 30 percent rating under 38 C.F.R. § 4.130. For the reasons stated above, the Veteran’s collective symptomatology for the period prior to October 21, 2014 were not of the frequency, severity and duration contemplated by a higher 50 percent rating. b. Entitlement to a rating higher than 30 percent for acquired psychiatric disorders from October 21, 2014 to March 25, 2015. After reviewing the foregoing, the Board finds that for the period from October 21, 2014 to March 25, 2015, an increased rating in excess of 30 percent but not to exceed 50 percent is granted. In that regard, the evidence has shown that the Veteran suffered occupational and social impairment with reduced reliability and productivity. The pertinent evidence for this period includes an October 2014 private psychiatric evaluation, and a December 2014 mental residual functional capacity assessment conducted by SSA. Notes from the October 2014 examination indicate that during this period the Veteran displayed symptoms of moderate impairment in maintaining attention and concentration, and maintaining a regular schedule, moderate to marked impairment in performing complex tasks independently, moderate impairment dealing with stress, dysphoric and dysthymic mood, palpitations due to panicking, long-term memory deficits, concentration deficits, organizational difficulties, poor overall presentation, difficulty with verbal comprehension, and social isolation. Furthermore, Dr. J.M., opined that the Veteran would need assistance managing funds. The Veteran’s December 2014 mental residual functional capacity assessment documented conducted recorded similar symptoms. Specifically, the Veteran exhibited understanding and memory limitations, moderately limited attention and concentration for extended periods, moderately limited ability to maintain a regular schedule and to be punctual within customary tolerances. However, the examiner noted that “from a psyche perspective, there are no marked impairments in the [claimant’s] ability to understand, concentrate, remember, adapt, relate or persist with tasks on a sustained basis.” Despite the Veteran’s limitations due to his acquired psychiatric conditions, the record reflects that he was able to learn new tasks with help, and that he had some, albeit limited, social interaction with old friends. Moreover, notes from the October 2014 private psychiatric evaluation indicate that the Veteran evidenced fluent speech, and coherent and goal directed thought processes. Additionally, Dr. J.M. posited that the Veteran was able to follow and understand directions, perform simple tasks independently, make appropriate decisions, and relate to others. When considered as a whole, and affording the Veteran the benefit of the doubt, the Veteran’s symptomatology is most closely approximated by the criteria for a 50 percent rating. A higher 70 percent rating is not warranted for this period as the Veteran’s acquired psychiatric disorders did not demonstrate a symptomatology tantamount to occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking or mood. Notably, the Veteran did not evidence symptoms such as near continuous panic or depression, suicidal ideation, obsessional rituals, illogical speech, or an overall inability to function independently. c. Entitlement to a rating higher than 30 percent for acquired psychiatric disorders from March 25, 2015 to May 12, 2015. After reviewing the foregoing evidence, the Board finds that for the period from March 25, 2015 to May 12, 2015, the criteria for an increased rating in excess of 30 percent but not to exceed 70 percent is warranted for the Veteran’s acquired psychiatric conditions. For that period, the evidence of record indicates that the Veteran’s symptomatology demonstrated occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood. Notes from a private psychiatric examination conducted by Dr. H.H.G. in March 2015 reflect a symptomatology consistent with a 70 percent rating. Specifically, the record indicates that the Veteran suffered from social isolation, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names directions or recent events, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, impaired social impulse control, such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, neglect of personal appearance and hygiene, struggles remembering basic information, below average capacity for abstraction, anxious and nervous mood. Despite the Veteran’s symptomatology for that period, he did not demonstrate the requisite symptoms contemplated by total occupational and social impairment. Specifically, the record does not indicate that the Veteran demonstrated gross impairment in thought processes or communication, grossly inappropriate behavior, a persistent danger of hurting himself or others, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. Furthermore, Dr. H.H.G. posited in her evaluation that the Veteran’s collective symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school and family relations, judgment thinking and/or mood. Dr. H.H.G.’s functional description coincides with a 70 percent rating. For the reasons stated above, the Veteran’s collective symptomatology for the period prior to March 25, 2015, were not of the frequency, severity and duration contemplated by total occupational and social impairment and a 100 percent rating. Mauerhan, 16 Vet. App at 442-43; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013). d. Entitlement to a rating higher than 70 percent for acquired psychiatric disorders from May 12, 2015 to December 15, 2016. After reviewing the foregoing evidence, the Board finds that a rating in excess of 70 percent is not warranted for the period from May 12, 2015 to December 12, 2016, as the Veteran has not demonstrated the symptomatology reflective of the criteria for a 100 percent rating. In that regard, the evidence has shown occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The most pertinent evidence from this period is the March 2015 private psychiatric examination discussed in the section above. Notably, the RO relied upon this examination report to assign a 70 percent rating for the Veteran’s acquired psychiatric disorder. However, the RO assigned an effective date of March 25, 2015, for that increased rating based on the date the Veteran’s notice of disagreement for a higher initial rating was received. See April 2017 rating decision. The Board has, in the above section, awarded an effective date of March 25, 2015, for the 70 percent rating, based on the date the March 2015 private psychiatric examination was conducted. Since the record contains no other relevant evidence for this period, the Board finds that a 70 percent rating is continued as the Veteran has not demonstrated a symptomatology of the frequency, severity, and duration contemplated by total occupational and social impairment. Entitlement to TDIU VA regulations provide that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16(a). In order for claimants who have one service-connected disability to qualify for TDIU under section 4.16(a), that disability must be rated 60 percent or greater. Id. In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant’s disabilities must be 70 percent or greater. Id. For the purpose of determining whether the Veteran’s disability ratings constitute a single disability rated 60 percent or multiple disabilities one of which is rated 40 percent or greater, certain disabilities can be combined if, among other possibilities, the disabilities share a common etiology. Id. Where these percentage requirements are not met, 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). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose, 4 Vet. App. at 361; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose, 4 Vet. App. at 361. With regard to the claim for TDIU listed on the cover page, the U.S. Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In April 2020, the Veteran asserted he was unemployable as a result of the disabilities for which he is seeking an increased rating. See April 2020 VA Form 21-8940. Accordingly, part and parcel with the increased rating claims before the Board is the issue of whether a TDIU is warranted as a result of those disabilities. In an April 2017 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 100 percent rating for acquired psychiatric disorders, effective December 15, 2016. A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total (100 percent). 38 C.F.R. § 4.16(a). The Board acknowledges, however, that assigning a total schedular rating does not in every instance render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). More specifically, the issue of TDIU is not moot when it could be granted for a disability other than the disability for which a 100 percent rating is in effect because there would be no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Nevertheless, the Veteran has been granted a 100 percent scheduler rating for his service-connected psychiatric disability, alone, effective December 15, 2016. Furthermore, the facts demonstrate that any possible claim for a TDIU would be based solely on the Veteran's acquired psychiatric disorder. Accordingly, the Board finds that the issue of entitlement to a TDIU from December 15, 2016 is indeed moot in this case. The only issue remaining on appeal is entitlement to a TDIU prior to December 15, 2016. a. Entitlement to a TDIU prior to October 21, 2014. The Board finds that it is reasonably shown that the Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment prior to October 21, 2014. The Veteran reported working as a bus driver, making $30 per hour, for the New York City Transit Authority for twenty-eight years from May 1986 to July 2014, when he retired due to his service connected disabilities. The Veteran also notes that while he was technically employed until July 2014, he did not actually work after January 2014 due to his disabilities. Review of the claims file shows that the Veteran graduated from high school and attended school for air conditioning and refrigerators for three months but did not finish the program. Prior to October 21, 2014, the Veteran was service connected for an acquired psychiatric disorder rated at 30 percent, bilateral hearing loss rated at 20 percent, and tinnitus rated at 10 percent. For this period, the Veteran’s service-connected disabilities did not meet the schedular requirements for a TDIU rating. See 38 C.F.R. § 4.16(a). If the Veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). There must therefore be a determination as to whether there are circumstances in this case, apart from any non service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Following a review of the evidence of record, the Board finds that referral of the TDIU claim to the Director of VA Compensation Service for extraschedular consideration is not warranted. In reaching this conclusion, the Board recognizes that the Veteran was found disabled by the SSA as of January 2014 due to hearing loss, bilateral tinnitus, herniated disc in lower back, high blood pressure, high cholesterol, depression, and prone to violence against others. The Veteran is not service-connected for a herniated disc, high blood pressure, or high cholesterol. As previously discussed, a TDIU is only awarded based upon service-connected disabilities and the VA is precluded from taking any nonservice-connected disability into consideration. Furthermore, any determination made by the SSA as to the Veteran’s eligibility for SSA disability is non-binding on the Board in reaching its determination of whether a TDIU is warranted. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). For the reasons stated above, the only conditions that may be considered in the determination of whether to award an extraschedular TDIU are the Veteran’s service-connected acquired hearing loss, tinnitus, and acquired psychiatric disorders. Prior to October 21, 2014 the Veteran demonstrated symptoms including social isolation, chronic sleep impairment, concentration issues, depressed mood, mild memory loss such as forgetting names, directions or recent events, and impaired impulse control to include unprovoked periods of irritability without violence, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including a work like setting. In addition to these symptoms, the Veteran’s acquired psychiatric disabilities were found to cause no more than 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). Despite his demonstrated symptomatology, the evidence of record does not support a finding that the Veteran was unable to secure and maintain a substantially gainful occupation by reason of his service-connected disabilities prior to October 21, 2014. As indicated above, while the Veteran demonstrated impairment due to his acquired psychiatric conditions, he was able to learn new tasks with help, maintained a relationship with two childhood friends who he saw roughly twice a month, attended church twice a month, and attended a sporting event once a month. While the Board does not wish to minimize the nature and extent of the Veteran’s overall limitation due to his service-connected disabilities, the preponderance of the evidence does not support a finding that his service-connected disabilities were sufficient to produce unemployability prior to October 21, 2014. While the Board acknowledges that the Veteran has not worked since January 2014 and was determined disabled by SSA from that date, the SSA’s determination was, as previously discussed, partially based on non-service-connected disabilities. Furthermore, the record is absent sufficient evidence related to the Veteran’s service-connected conditions prior to October 21, 2014 that demonstrates his unemployability. Accordingly, the Board finds that a referral for extraschedular evaluation is not warranted. b. Entitlement to a TDIU from October 11, 2014 through December 15, 2016. The Veteran’s overall combined disability evaluation first satisfied the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a)(2), as of October 21, 2014. On that date, he had at least one disability ratable at 40 percent and his combined evaluation was 70 percent. From October 21, 2014 the Veteran was service-connected for acquired psychiatric disorders rated at 50 percent (from October 21, 2014 to March 25, 2015) and 70 percent (from March 25, 2015 to December 15, 2016); hearing loss rated at 20 percent; and tinnitus rated at 10 percent. The combined evaluation for this time period is 70 percent or above. This is because the Veteran’s acquired psychiatric disorders have been found to be secondary to his tinnitus and therefore share a common etiology and will be treated as a single disability rated at 60 percent under 38 C.F.R. § 4.16(a)(2). When combined with his hearing loss, the Veteran’s overall disability rating reaches the 70 percent threshold required for schedular TDIU. The Veteran contends that his service-connected disabilities have rendered him unable to maintain substantially gainful employment. On review of the evidence, the Board finds that such is reasonably shown from October 21, 2014. As noted above, the Veteran was found to be disabled by the Social Security Administration from January 2014 due to his non-service-connected back condition, service-connected hearing loss, and service-connected acquired psychiatric disorders. The Board finds that the record is consistent with the SSA determination. Treatment records from an October 2014 private psychiatric exam show diagnoses of mild provisional neurocognitive disorder, and persistent depressive disorder with anxious disorder. The symptomatology for these conditions include document chronic sleep impairment, dysphoric and dysthymic mood, depressive symptomatology, longterm memory and concentration deficits, organizational deficits due to cognitive symptomatology, poor overall presentation that includes getting sidetracked while answering questions, difficulty with verbal comprehension, below average intellectual capacity, social isolation, moderate impairment when performing tasks independently, and moderate impairment dealing with stress. Overall, Dr. J.M. opined that the Veteran’s psychiatric problems might moderately to significantly interfere with his ability to function on a daily basis. The Board gives great weight to the findings of the October 2014 psychiatric examination pertaining to the limitations of the Veteran due to his acquired psychiatric disorders. While the Board notes that the Veteran had a long history of successful employment, in recent years his psychiatric conditions have progressed to a debilitating degree thereby rendering him unemployable. In additional to the October 2014 psychiatric exam, statements from the Veteran’s acquaintances further lend credence to the fact that the Veteran is unable to work. S.H., a previous coworker, wrote in a June 2020 buddy statement that the Veteran’s declining mental state became more noticeable by 2011. Specifically, the letter stated that the Veteran increasingly struggled at dealing with stress and was stressed most days. Additionally, the letter opined that the Veteran was frustrated and losing motivation to work. Finally, the statement indicated that the Veteran struggled in adapting to changes in the work environment near the end of his employment. A second buddy statement written by D.J. in June 2020 sheds further light on the Veteran’s inability to work. D.J. stated that the Veteran used to be active, hardworking, and passionate about his job but that has not been the case for the past 10 years. Furthermore, D.J. indicated that the Veteran struggled to find the motivation to keep working near the end of his employment and noticed a further exhibited a further decline in his interactions and motivation after retiring. Given the foregoing body of evidence, the Board resolves all reasonable doubt in the Veteran’s favor (as required by law) and concludes that the evidence of record supports a finding that his service-connected psychiatric disorders precluded him from securing or following substantially gainful employment from October 21, 2014 to December 25, 2016. Therefore, the criteria for establishing entitlement to TDIU during this time period are met. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.