Citation Nr: 21001126 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-15 544 DATE: January 7, 2021 ORDER Entitlement to an initial increased rating of 50 percent, but no higher, for a depressive disorder prior to February 26, 2020, is granted. Entitlement to a rating in excess of 50 percent from February 26, 2020, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s psychiatric condition has more nearly approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as: chronic sleep impairment, irritability, disturbances of mood and motivation, mild memory loss, occasional impairment in concentration and judgment, and difficulty establishing and maintaining effective relationships. 2. The Veteran’s service-connected psychiatric condition does not preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but no higher, prior to February 26, 2020, for a depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for a rating in excess of 50 percent since February 26, 2020, for a depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.130, DC 9434. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1976 to November 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim on appeal in June 2018 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). In the June 2018 remand, the Board also remanded the issue of whether there was clear and unmistakable error (CUE) in a December 1977 rating decision that denied service connection for a nervous condition, characterized as adjustment reaction to adult life for the issuance of a statement of the case (SOC). While the Appeals Control and Locator System (VACOLS) shows that an SOC was issued in February 2020, a copy of the SOC is not associated with the Veteran’s claims file. Additionally, the Veteran has reported that he has not received the SOC. See September 2020 Statement in Support of Claim. Accordingly, the RO should provide a copy of the February 2020 SOC to the Veteran and associate a copy with the Veteran’s claims file. 1. Entitlement to initial increased ratings for a depressive disorder. The Veteran contends that higher ratings are warranted for his depressive disorder. For the reasons that follow, the Board finds that a rating of 50 percent is warranted prior to February 26, 2020, but a rating higher than 50 percent is not warranted at any point during the appeal period. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 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. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s depressive disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9434. Under DC 9434, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). Id. 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is 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. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. Vazquez-Claudio, 713 F.3d at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio, 713 F.3d at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the Board finds that the Veteran suffers from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to that which would be produced by the specific symptoms enumerated in the rating criteria, then the appropriate equivalent rating will be assigned. 38 C.F.R. § 4.21; Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Board notes that the Diagnostic and Statistical Manual for Mental Disorders, fifth edition (DSM V), which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (August 4, 2014). Consequently, the Board will not consider previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). Turning to the evidence of record, in a January 2013 private psychological assessment report by Dr. L.C.R., the Veteran reported poor memory, difficulty sleeping, avoidance of people, frequent feelings of irritability and anger outbursts, loss of interest in pleasurable activities, and feeling upset when something reminded him of his military experiences. The Veteran’s spouse reported that the Veteran was always upset and irritable and spent almost all of his time in his bedroom. She noted that he spoke weird things to himself in front her and told her that he hears and sees things. Dr. L.C.R. noted markedly depressed mood and constricted affect. The Veteran’s thinking and attitude were unmotivated and too distracted with missing ability to handle abstract concepts. In addition to hallucinations and delusions, the Veteran also reported suicidal ruminations without plans or attempt. The Veteran was oriented to person but had difficulty with place and time. Dr. L.C.R. noted that the Veteran’s symptoms had been worsening and showing irritability, insomnia, isolation, depressed mood, daily suicidal rumination, delusions, and hallucinations. In a February 2013 correspondence, another private psychiatrist, Dr. A.R.D., reported that the Veteran’s psychotic episodes caused him to experience poor impulse control, irritability, and insomnia. A March 2013 VA treatment record shows that the Veteran reported feeling somewhat irritable, anxious, and angry at times. He noted that he was sleeping well with medications. A June 2013 VA treatment record shows that the Veteran denied feeling depressed or anxious more often than not. The Veteran underwent a VA examination for his psychiatric disorder in February 2014. The only symptom noted on clinical evaluation was chronic sleep impairment. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms. A September 2014 VA treatment record shows that the Veteran reported having a harsh relationship with his spouse. A June 2015 VA treatment record shows that the Veteran endorsed a depressed and irritable mood often. The treating physician also noted that the Veteran’s reported memory problems could be attributed to alcohol use. Poor insight also was noted. A May 2016 VA treatment record notes impaired remote memory. The Veteran also reported that he attempted suicide approximately 15 years prior. A December 2016 VA treatment record shows that the Veteran reported having friends that he could rely on. He noted he was capable of independence, had good hygiene, and showed a degree of self-control. It also noted a history of previous suicide attempts. The Veteran also reported relationship problems with his wife and son. He noted that he was verbally abusive when he drank. A February 2017 VA treatment record indicated that the Veteran had a past history of memory complaints that could have been alcohol induced. A May 2017 VA treatment record notes episodes of irritability. The Veteran also reported growing chickens and roosters on his land as well as farming his land. A February 2018 VA treatment record shows that the Veteran reported coping with his symptoms by avoiding people, places, and things. Additional VA treatment records from 2018 show that the Veteran had issues with his neighbor due to his neighbor invading his property, but the matter was being handled through the court system, and the Veteran had no violent ideations against his neighbor. A November 2018 VA treatment record notes intermittent irritability. The Veteran reported that when he feels arguments with his son are escalating, he leaves the arguments to prevent further escalation. A January 2019 VA treatment record notes difficulties with concentration, insight, and judgment. A March 2019 VA treatment record shows that the Veteran reported playing dominos with his friends. Likewise, the Veteran reported having some friends in a June 2019 VA treatment record. An August 2019 private treatment record notes that the Veteran was anxious with frequent mood changes. A January 2020 private treatment record shows that the Veteran reported sleeping very little. The Veteran most recently underwent a VA examination for his psychiatric condition in February 2020. At the examination, the Veteran reported having dysfunctional family relationships due to his children’s past aggression towards him. On clinical examination, the examiner noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and an inability to establish and maintain effective relationships. The examiner noted that the Veteran was alert, oriented, and not suicidal or homicidal. Poor judgment and insight were noted. Depressed mood also was noted, but without indications of perceptual or thought disorders. The examiner noted that the Veteran seemed to be in contact with reality. The examiner opined that the Veteran experienced 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. A March 2020 VA treatment record shows that the Veteran reported multiple depressive symptoms. An April 2020 VA treatment record shows that the Veteran reported that during quarantine he played dominoes with his granddaughter and called his family. In a May 2020 correspondence, the Veteran reported that his condition was severe. He reported that he has difficulty in work, judgment, family relationships, and school. He also noted that he has hallucinations, is a persistent danger of hurting himself or others, has an inability to perform activities of daily living, and has poor hygiene. He reported that he cannot function independently or effectively, gets lost easy, is disoriented, and has an inability to establish and maintain effective relationships. VA treatment records throughout the appeal period generally show that the Veteran was oriented to all spheres and had normal speech as well as coherent thought processes. They also show that the Veteran generally denied hallucinations, delusions, and suicidal ideations. It was consistently noted that the Veteran was no danger to himself or others. The Veteran’s hygiene and grooming also were generally noted to be fair to good. Private treatment records from 2017 to 2019 note the Veteran’s appearance as disheveled. They also generally note that the Veteran was alert, oriented, was not suicidal or homicidal, and denied delusions and hallucinations. Based on a review of the evidence, and resolving reasonable doubt in the Veteran’s favor, his depressive disorder has more nearly approximated the criteria corresponding to a 50 percent rating for the entire appeal period. Throughout the appeal period, the Veteran’s depressive disorder has predominately manifested in symptoms such as chronic sleep impairment, irritability, disturbances of mood and motivation, mild memory loss, occasional impairment in concentration and judgment, and difficulty establishing and maintaining effective relationships. A holistic review of the evidence reveals that the Veteran experiences moderate social impairment and mild occupational impairment. Also, to the extent that some of his symptoms overall may be due to nonservice-connected alcohol use disorder, the February 2020 VA examiner opined that the symptoms cannot be separated from his depressive disorder. Thus, they are all attributed to the service-connected depressive disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran’s symptoms have not more nearly approximated the criteria for a rating in excess of 50 percent at any time during the appeal period, and the evidence is not evenly balanced. Throughout the appeal period, the Veteran has predominately been alert and well oriented. His speech and thought process has been normal. Significantly, the Veteran did not exhibit illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; or spatial disorientation. The Veteran also did not experience persistent hallucinations or delusions, now was he a persistent danger to hurting himself or others. The Veteran’s social impairment appears to be moderate. The evidence of record shows that the Veteran has maintained a relationship with his wife, children, and granddaughter throughout the appeal period. Although he has had issues getting along with his wife and son at times, the Veteran has indicated that such is due to feelings regarding his behavior in the past and not his current symptoms. Additionally, the record shows that while the Veteran has had issues with his wife and son, he has been able to work through those issues and maintain relationships with them. Although the Veteran has reported that he tends to avoid people and places, he also has reported having friends throughout the appeal period and playing dominos with them. While the February 2020 VA examiner noted that the Veteran has an inability to establish and maintain effective relationships, in light of the Veteran’s friends and family relationships, the Board finds that the Veteran rather has a difficulty in establishing or maintaining effective relationships. In terms of occupational functioning, the effects of his depressive disorder appear to be mild. While the Veteran has reported memory issues throughout the appeal period, such complaints are relatively infrequent and there is no indication that any memory loss is significant in nature. Specifically, while the record contains some complaints of memory issues, the Veteran’s memory has generally been noted as intact. See VA treatment records from 2014 to 2020. Additionally, when impairment was noted, only the Veteran’s remote memory was noted to be impaired. Moreover, while impairment in judgment and insight have been noted, the symptom is relatively infrequent, as the Veteran’s judgment and insight have generally been noted as fair to good. Id. Furthermore, the Veteran has shown good judgment in dealing with his family and social relationships. Specifically, he has reported that he leaves arguments with his son to prevent escalation and has dealt with his issues with his neighbor in court rather than engaging in less responsible behavior. Thus, any impairment caused by his impaired judgment and insight appears to be mild. Furthermore, while the Veteran has reported occasional impairment in concentration, any impairment caused by such symptom appears to be no more than mild. Specifically, throughout the appeal period, the Veteran has been able to effectively communicate with his treating physicians and be engaged in his care. Accordingly, the Veteran’s psychiatric symptoms alone do not cause the level of occupational impairment such as that contemplated by the 70 or 100 percent rating criteria. While the Board acknowledges that the Veteran has experienced anger and irritability throughout the appeal period, the Board does not find that such symptoms cause the level of impairment contemplated by a higher rating. Specifically, the evidence of record shows that despite his irritability and contrary to Dr. A.R.D.’s report of poor impulse control, the Veteran has had good impulse control. As noted above, the Veteran has reported removing himself from arguments with his son before they escalate. Additionally, despite being upset with his neighbor, the VA treating physician noted that Veteran did not report any violent ideations against his neighbor. Moreover, treatment records consistently note that the Veteran is not a danger to others. The Veteran also has reported having a degree of self-control. See December 2016 VA treatment record. Thus, while the Veteran has experienced irritability and anger during the appeal period, the resulting impairment is relatively mild. The Board also acknowledges that the Veteran has reported having poor hygiene. See May 2020 addendum substantive appeal. However, while the Veteran’s appearance has been noted as disheveled intermittently during the appeal period, his appearance and grooming have predominately been noted as fair to good. Moreover, the Veteran has also characterized himself as having good hygiene. See December 2016 VA treatment record. While the Veteran’s appearance may have been disheveled at times, he has not suffered from any significant hygiene issues. Thus, the minimal frequency and severity of this symptom does not cause the level of impairment contemplated by a higher rating. Further, the Board also acknowledges the Veteran’s report of suicidal ruminations at his January 2013 private psychological assessment. However, the presence of a single symptom is not dispositive of any particular disability level. VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms, quantifies the level of occupational and social impairment caused by those symptoms, and assigns an evaluation that more nearly approximates that level of occupational and social impairment.). See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). While this symptom was reported in January 2013, the Veteran has consistently denied experiencing any suicidal ideations thereafter. See VA and private treatment records; VA examinations. Such speaks to the minimal frequency of this symptom. Moreover, there is no evidence indicating that it has been productive of industrial incapacity. Thus, while the Board is mindful of Bankhead in which the Court found the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas,” as explained above, after a holistic analysis of the Veteran’s symptoms, they do not more nearly approximate the rating for 70 percent at any time during the appeal period. The Board also acknowledges the Veteran’s report in May 2020 that he has experienced disorientation, an inability to function independently and effectively, hallucinations, an inability to perform the activities of daily living, and has been a persistent danger to himself or others. However, except for the January 2013 private psychological assessment that indicates a presence of these symptoms, the Veteran has generally been oriented to time, place, and person throughout the appeal period. Additionally, he has consistently denied hallucinations and been noted to not be a danger to himself or others. Furthermore, the evidence of record does not indicate that he has an inability to function independently or effectively or perform the activities of daily living. Specifically, a December 2016 VA treatment record shows that the Veteran reported being capable of independence, and as noted above, the Veteran has predominately had good hygiene. The Board also acknowledges that Dr. L.R.C. assigned the Veteran a GAF score of 50, which is indicative of more severe symptoms. However, as explained above, the DSM V is not for application in this case, and thus, GAF scores are not to be considered. However, even if it were considered, it would not warrant a higher rating as a GAF score alone is not determinative of a particular rating, and the low GAF score is generally inconsistent with the other evidence of record, which as explained in detail above, indicates that the Veteran has experienced at most moderate social and mild occupational impairment throughout the entire appeal period. The Board also notes that in May 2020, the Veteran reported being hospitalized for his psychiatric condition in March 2020. However, the Board finds that such does not indicate the Veteran’s psychiatric condition increased in severity such that the February 2020 VA examination is inadequate for rating purposes. A review of the record shows that the Veteran experienced an alcohol relapse and increase in depression symptoms in February 2020, immediately prior to his VA examination, and subsequently received day hospitalization treatment in March 2020. See February and March 2020 VA treatment records; March 2020 private treatment records. Thus, while the Veteran did receive hospitalization treatment in March 2020 after his VA examination, the actual change in his condition occurred prior to his VA examination. As an additional matter, the Board notes that the records from the Veteran’s day hospitalization are of record. In sum, the Board finds that the Veteran’s psychiatric symptoms more closely approximate the criteria corresponding to a 50 percent rating for the entire appeal period. Throughout the entire appeal period, the severity, frequency, and duration of the Veteran’s symptoms have resulted in no more than moderate social impairment and mild occupational impairment and thus, do not result in the level of occupational and social impairment contemplated by a rating in excess of 50 percent at any point during the appeal period. Thus, a rating a 50 percent, but no higher, is warranted for the entire appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a TDIU. The Veteran contends that his psychiatric condition has precluded him from obtaining or maintaining substantially gainful employment. For the reasons that follow, the Board finds that a TDIU is not warranted. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In the Court’s March 2019 Panel Decision, it explained that “substantially gainful employment” contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Where a Veteran does not meet the percentage requirements, but there is evidence that the Veteran is unable to obtain or maintain substantially gainful employment, the claim for TDIU will be referred to the Director of VA’s Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Christensen v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1907 (explaining that the 2018 amendment to 38 C.F.R. § 3.321(b) did not alter the requirement that the Board refer a claim for an extraschedular TDIU to the Director of Compensation Service in the first instance). The Veteran is only service-connected for a depressive disorder, now rated 50 percent disabling for the entire appeal period. As such, he does not meet the schedular criteria for a TDIU. Moreover, the Board finds that his service-connected disability does not render him unable to secure or maintain substantially gainful employment such that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. The evidence of record shows that the Veteran’s work history predominately consists of unskilled and semi-skilled labor positions. See April 2014 Veterans Application for Increased Compensation Based on Unemployability (VA 21-8940); Social Security Administration (SSA) records. Specifically, the Veteran has worked in a company warehouse, packing room, and as a labor machine operator. See SSA records. The Veteran last worked in 1999. Id. He completed high school as well as one year of college. See April 2014 VA 21-8940; February 2020 VA examination. In light of the Veteran’s work history and education, the Board finds that the Veteran would have the proficiency to work in an unskilled or semi-skilled labor position or an unskilled position that does not require physical labor, such as a receptionist, telemarketer, or parking lot attendant. As described in detail above, the Board finds that the Veteran’s psychiatric symptomatology, to include anger and irritability as well as occasional judgment, concentration, and memory issues, have resulted in moderate social impairment and mild occupational impairment throughout the entire appeal period. While the Veteran may have experienced occasional judgment, concentration, and memory issues, these symptoms would not preclude substantially gainful employment. Of significance, the Veteran has generally showed good judgment during the appeal period, as explained in detail above, and has been able to appropriately and effectively communicate with his treating physicians as well as with VA during his appeal. While impairment in remote memory has been intermittently noted, there is no indication that his short-term memory has been impaired or that his memory issues would cause significant difficulty in completing occupational tasks. Furthermore, while the Veteran has experienced anger and irritability during the appeal period, he has been able to maintain friendships as well as relationships with his family members. The evidence also indicates that he generally has good impulse control and is able to appropriately handle disagreements with others. Thus, the Board finds that the Veteran would generally be capable of getting along with co-workers, supervisors, and customers. The Board acknowledges Dr. L.C.R. and Dr. A.R.D.’s opinions that the Veteran’s psychiatric condition renders him unemployable. See January 2013 private psychological assessment; February 2013 correspondence. However, as explained in detail above, a majority of the symptoms that the examiners based their opinions on have either been inconsistent with the other evidence of record or have not been relatively infrequent. Additionally, the issue of whether the Veteran is unemployable is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Finally, the Board acknowledges that SSA found the Veteran disabled due, in part, to his psychiatric condition beginning in June 1999. See June 2004 SSA determination. However, given the different standards utilized by VA and SSA, the Board is not bound by the SSA determination. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In sum, the evidence of record does not show that the Veteran’s service-connected psychiatric disability would preclude employment in an unskilled or semi-skilled labor position or an unskilled non-physical labor position. Accordingly, there is no basis for referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). There is no doubt to be resolved; the claim for a TDIU is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.