Citation Nr: 21001804 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-63 087 DATE: January 11, 2021 ORDER Service connection for hypertension is denied. Service connection for diabetes mellitus is denied. Service connection for diabetic neuropathy is denied. A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating by reason of individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s diabetes mellitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran’s diabetic peripheral neuropathy was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and it is not secondary to a service-connected disability. 4. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 5. Service connection is in effect for PTSD, rated 50 percent disabling; OSA, rated 50 percent disabling; the residuals of an injury of the left foot, rated 10 percent disabling until August 2018 and 30 percent disabling from that date; tinnitus, rated 10 percent disabling; and bilateral hearing loss and a right eyelid scar, both rated noncompensable; the Veteran’s combined evaluation was 80 percent until January 2019 and 90 percent thereafter. 6. The Veteran reported that he had four years of college education and work experience as a veteran service officer and in restaurant management. 7. The Veteran’s service-connected disabilities, standing alone, are not shown to be of such severity as to render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for diabetic neuropathy have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 5. The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from August 1983 to December 1983 and on active duty from February 1985 to July 1988. The Veteran testified at a videoconference hearing before the undersigned in July 2019. A transcript of the hearing has been associated with the claims folder. The case was previously before the Board in March 2020. At that time the issues related to service connection for bilateral hearing loss, obstructive sleep apnea (OSA), hypertension, diabetes mellitus, and diabetic retinopathy; as well the issue of an increased rating for PTSD and entitlement to TDIU were remanded for further development of the evidence. Subsequent to the additional development completed, the claims for service connection for bilateral hearing loss and obstructive sleep apnea were granted in a September 2020 rating decision; therefore, they are no longer on appeal. As for the remaining claims, the requested development has been accomplished, and they have been returned for further appellate consideration. Regarding the development ordered by the Board in the March 2020 remand, the Board notes that the Veteran was requested to provide information regarding treatment that he stated he received for elevated blood sugar months after service. While this information was requested of the Veteran in March 2020, there was no response. The Board also ordered additional examinations so that additional opinions of the etiology of hypertension and diabetes mellitus could be conducted. While the Veteran’s representative has objected that the examination that were performed are inadequate for rating purposes, the Board finds them to be complete and responsive to the questions posed by the Board. Specifically, the representative has argued that the examiners did not adequately address the Veteran’s contention regarding weight gain during service. Review of the examination report shows that this was specifically addressed by the examiners. Moreover, the Board notes that record reviews with opinions, performed in addition to the initial examinations performed are sufficiently responsive to the Board’s remand instructions. As such, the Board finds no need to further delay the Veteran’s case for additional development. As noted in the March 2020 Board decision, the Veteran has disagreed with a number of issues that have been developed for appellate consideration. However, he has requested a hearing before a member of the Board in conjunction with those issues, which has not yet been scheduled. Therefore, those matters will be addressed in a separate decision of the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as hypertension, diabetes mellitus, or diseases of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for hypertension The Veteran contends that service connection should be established for hypertension. It is pointed out that the Veteran’s service treatment records (STRs) show that he had elevated blood pressure readings while on active duty and it is contended that this marks the onset of the hypertension diagnosed years later. The Veteran’s representative has argued that the fact that hypertension was not diagnosed until 2013 does not mean that the Veteran did not manifest this disorder during the intervening years. Hypertension is persistently high arterial blood pressure with suggested threshold levels starting at 140 mm/Hg systolic and 90 mm/Hg diastolic. Dorland’s Illustrated Medical Dictionary, 799 (27th ed. 1988). Note (1) to Diagnostic Code 7101 recognizes the disability of hypertension when the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension when the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104. As noted, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of hypertension as evidenced by a February 2013 VA treatment record. As noted, hypertension is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hypertension, and evidence shows that he had elevate blood pressure readings in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypertension began during service, was manifested within one year of separation from service, or is otherwise related to an in-service injury, event, or disease. Review of the Veteran’s STRs shows that the Veteran had several instances of elevated blood pressure readings while on active duty. For example, in February 1988 readings of 134/95 and 131/96 were noted. That month there was an assessment of borderline hypertension. Additional readings, including in March 1988 when a reading of 110/74 was recorded were, however, normal. There is no examination for separation from service of record. Post-service treatment records include a February 2013 VA orthopedic evaluation when it was noted that the Veteran had a past history of hypertension for which he was on medication. An examination was conducted by VA in September 2016. At that time, the diagnosis was hypertension. The examiner rendered an opinion that it was less likely than not that the Veteran’s hypertension was caused by or related to the elevated blood pressure readings during service. The rationale was that the STRs showed documentation for borderline hypertension with the earliest assessment for a diagnosis of essential hypertension shown in January 2013 by a VA treatment record. The current assessment showed hypertension to be stable without active prescribed medications. The evidence of record, meaning the absence of medical record documentation for essential hypertension, showed that hypertension was diagnosed in 2013, which is 25 years after service. As such, it was less likely than not caused by or related to the elevated blood pressure readings during service. Pursuant to remand by the Board, another VA examination was conducted in July 2020. After examination and review of the record, the diagnosis was hypertension. The date of onset was listed as 1985 with the Veteran reporting that he had put on a lot of weight while in service in order to play football. He reported that during his physical he was told that he was obese. He further stated that during service he was diagnosed with hypertension and started with medication. In a September 2020 opinion, the examiner stated that the hypertension was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The rationale noted that the Veteran’s STRs showed documentation of borderline hypertension with the earliest assessment for diagnosed essential hypertension being shown in January 2013. It was also noted that an assessment by a primary care provider in August 2016 had showed the hypertension to be stable without active prescribed medications. The examiner explained that the absence of medical record documentation until the diagnosis of essential hypertension until 25 years after separation from service made it less likely than not that the hypertension is caused by or related to the elevated blood pressure readings during service. In an October 2020 addendum, an examiner opined after additional review of the records that the Veteran’s hypertension was not caused by service or a service-connected disability. It was stated that hypertension was not caused by increased weight or high carb diet as review of the STRs demonstrated that the Veteran did not have excessive weight gain during service. The Veteran entered service at 191 pounds and had a documented weight of 200 pounds in 1988. There was no objective evidence to support that the hypertension was aggravated in any measurable way by the past history of military service. The examiner went on to analyze medical literature regarding the etiology of hypertension, which resulted from numerous genetic and environmental factors that had multiple compounding effects on cardiovascular and renal structures and function. The examiner observed that essential hypertension was a known diagnosis with a multifactorial etiology, predominantly genetic, and commonly of adult onset in the general population. While the record shows that the Veteran had elevated blood pressure readings at times while he was on active duty, there is no demonstration that he had chronic high blood pressure readings in service or that he was given a diagnosis of hypertension at that time. Additionally, although the Veteran has reported being prescribed medication for hypertension in service, such as at the August 2020 VA examination, this is not supported by his STRs. The treatment records show the Veteran was not diagnosed with hypertension until 2013, noted by the VA examiner to be 25 years after his separation from service. While the Veteran is competent to report having experienced symptoms of consistent with high blood pressure/ hypertension since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of essential hypertension diagnosed in 2013. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the VA examiners who have rendered the only opinions in this case found no relationship between the isolated elevated blood pressure readings in service and the diagnosis of essential hypertension in 2013. As such the hypertension is not at least as likely as not related to an in-service injury, event, or disease, including weight gain while on active duty. As pointed out by the examiner in October 2020, the Veteran did not have the excessive weight gain of which he testified during service. The examiners’ opinions are probative, because they are based on an accurate understanding of the Veteran’s medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for hypertension, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for diabetes mellitus The Veteran contends that service connection should be established for diabetes mellitus, which he states is related to weight gain from the high carbohydrate diet that he had while on active duty. During the hearing before the undersigned, he asserted that he was told to gain an excessive amount of weight in order to play football in service. The Veteran has a current diagnosis of diabetes mellitus as evidenced by a January 2013 VA treatment record. As noted, diabetes mellitus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Review of the Veteran’s STRs shows no complaint or manifestation of diabetes mellitus while he was on active duty. As such, the disability was not shown as chronic in service. Moreover, the record does not demonstrate manifestations of diabetes mellitus during service or to a compensable degree within the one-year presumptive period. Finally, it was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with diabetes mellitus until 2012, as noted in an April 2018 VA treatment record. Other treatment records date the Veteran’s diabetes to January 2013, 25 years after his separation from service and years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of fatigue since his period of active duty, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of diabetes mellitus as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or interpretation of complicated diagnostic medical testing. Jandreau 492 F.3d at 1372. Service connection for diabetes mellitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between this and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. An examination was conducted by VA in July 2020. At that time, the diagnosis was diabetes mellitus. In September 2020, an examiner opined that the Veteran’s diabetes mellitus was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The rationale was that the Veteran was noted to have diabetes in August 2017 when a five-year history was noted. At that time, it was noted that he had significant shortness of breath and had noted a 30 percent decline in his energy level over the past 6 months. The diabetes was diagnosed 24 years after he separated from service. In an October 2020 addendum opinion, a VA examiner opined that after review of the record, the Veteran’s diabetes mellitus was not caused by service or a service-connected condition. Specifically, the diabetes was not caused by increased weight or diet while in service as there was no evidence of significant weight gain while he was on active duty. As with hypertension, it was noted that the Veteran weighed 191 pounds at entry into service, but was noted to weigh 200 pounds in 1988. There was no objective evidence to support claimed aggravation by any measurable weight gain in the military service. The examiner went on to discuss medical literature regarding the possible etiologies of diabetes mellitus, concluding that it was multifactorial, but predominantly genetic and commonly of adult onset in the general population. Under these circumstances, the only medical opinions in the record are that the Veteran’s diabetes is not at least as likely as not related to an in-service injury, event, or disease, including weight gain and diet during service. The rationale was that there was no evidence of excessive weight gain and the fact that there were no manifestations of diabetes mellitus for over 20 years after his separation from active duty. While the Veteran believes his diabetes mellitus is related to an in-service injury, event, or disease, including his weight gain, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau 492 F.3d at 1372. Moreover, while the Veteran stated that he had received treatment for elevated blood sugar readings shortly after his discharge from service, he has not provided the information necessary to obtain any of these medical records. Consequently, the Board gives more probative weight to the competent medical evidence. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for diabetes mellitus, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for diabetic neuropathy The Veteran also contends that service connection should be established for diabetic neuropathy. During the Board hearing in 2019, the Veteran testified that he believes that his neuropathy, which he stated involves both his hands and both his feet, is caused by diabetes that was, in turn, caused by weight gain he sustained during service. As noted above; however, service connection is denied for diabetes mellitus. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). “When aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen v. Brown, 7 Vet. App. 439 (1995). Review of the Veteran’s STRs shows no evidence of neuropathy while the Veteran was on active duty. A June 2013 statement from the Veteran’s private podiatrist documents the presence of diabetic peripheral neuropathy at that time. A private September 2016 report of diagnostic testing shows nerve conduction velocity (NCV) and electromyograph (EMG) tests to demonstrate a diffuse, chronic sensory, axonal peripheral polyneuropathy. A peripheral nerve examination conducted by VA in August 2016, and signed after record review in September 2016, shows a diagnosis of bilateral lower extremity peripheral polyneuropathy. At that time, the examiner reviewed the Veteran’s medical records, including the history of left foot injury sustained during service for which service connection has been established. The examiner opined that the current examination and EMG/NCS findings are consistent with a history of diabetic peripheral polyneuropathy and less likely than not incurred in, caused by, the result of, or aggravated by the injury of the Veteran’s left foot that occurred during service. The Veteran’s peripheral neuropathy is shown to be caused by non-service-connected diabetes mellitus, which did not become manifested until many years after the Veteran’s separation from service. It has not been found to be associated in any way with a service-connected disability. As such, the Board can find no basis for the establishment of service connection and the claim must be denied. A rating in excess of 50 percent for PTSD Service connection was established for PTSD by rating decision in October 2016. The 50 percent rating was awarded at that time. The Veteran contends that his PTSD is more disabling than initially evaluated. During the Board hearing in July 2019, he testified that he had difficulty getting along with people and would isolate himself. He also stated that he had trouble focusing his thoughts, had nightmares and had flashbacks. An examination was conducted by VA in August 2016. The diagnosis was PTSD that is related to a physical assault while the Veteran was in service. It was commented that the disability was mild in severity with occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or where the symptoms were controlled by medication. PTSD symptoms included recurrent and intrusive distressing memories and dreams related to the traumatic events that occurred in service; persistent avoidance of stimuli associated with the stressful events; persistent negative emotional state, markedly diminished interest and feelings of detachment or estrangement from others; hypervigilance; problems with concentration; and sleep disturbances. Additional symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran also exhibited suicidal and homicidal ideation without expressed intent. VA outpatient treatment records show that the Veteran was treated in January 2017 for PTSD. The Veteran was noted to be alert and oriented in all spheres with appropriate grooming and good eye contact. There was no psychomotor retardation or agitation. Speech was of normal rate, volume, and tone. Mood was “OK” with full and congruent affect. There was no flight of ideas or looseness of associations. Suicidal risk and protective factors were evaluated and unchanged with the risk considered low. There was no homicidal ideation, intent, or plan. There were no auditory, visual, or tactile hallucinations. Insight and judgment were fair. A private psychological evaluation was conducted in January and February 2017. At that time, the Veteran was alert and oriented to time, place, and person. He was casually dressed. Speech was coherent. Behavior was appropriate to situation. Mood was depressed and appropriate to affect. Thought processes were ruminative, perseverative, and obsessive about past trauma. He denied hallucinations and delusions. He admitted to feelings of disappointment, frustration, tension, confusion, anger, anxiety, loneliness, and depression. He had difficulty sleeping secondary to pain and nightmares as well as insomnia. He readily admitted to all of the “cardinal symptoms” of PTSD. Attention and concentration were poor. Psychological testing showed difficulties with concentration and memory. He also was shown to suffer from impaired impulse control, near continuous autonomic arousal secondary to hypervigilance and constant anger. He was considered to have occupational and social deficiencies in most areas of functioning due to his PTSD. The examiner opined that the symptoms affected the Veteran’s ability in information processing, ability to perform under even limited time pressure, and inefficiency of thought processes to the extent that he experienced total occupational and social impairment since at least 2015. It was stated that the Veteran was not a suitable candidate for VA vocational rehabilitation services. An examination was conducted by VA in August 2018. The diagnosis was PTSD. The examiner quantified the Veteran’s social and industrial impairment as being 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. Current PTSD symptoms included recurrent, involuntary, and intrusive distressing memories of the traumatic events; avoidance of distressing memories, thoughts or feelings about the traumatic events; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts; and sleep disturbance. Additional symptoms included anxiety, suspiciousness, and chronic sleep impairment. On mental status evaluation, the Veteran was alert and oriented in all spheres. He was cooperative and appeared sincere. He maintained good eye contact and his speech was of normal rate, prosody, tone, volume and content. Comprehension appeared intact. His thought process was linear, and goal directed. Thought content was unremarkable. Memory and cognition were grossly intact. There was no evidence of auditory or visual hallucinations. Insight and impulse control were intact. VA treatment records show that in November 2019, the Veteran seen for a mental health evaluation. He arrived on time for his psychotherapy session and reported that he had recently helped 115 Veterans file service connection claims at a fair. He also reported that his project for the month was to cook and deliver Thanksgiving meals for homeless Veterans and had worked with another individual to pass out blankets with the food. On mental status examination, the Veteran was awake, alert, oriented to all spheres, and had normal speech and eye contact. His psychomotor agitation/retardation was noted to be fidgety, but his thought process was linear and goal directed. His thought content was also devoid of any auditory or visual hallucinations. His affect was appropriate and cognitive function, attention, and concentration were normal. His mood was “irritable/calm” and his judgment and insight were average. The Veteran denied any suicidal or homicidal ideation. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms have not caused the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximate the symptoms associated with a 50 percent rating and have resulted in a level of impairment that most closely approximates the level of impairment associated with a 50 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The initial VA examination in the record shows that the Veteran’s PTSD has been manifested by symptoms including recurrent and intrusive distressing memories and dreams related his stressors and persistent avoidance behavior, diminished interest and feelings of detachment or estrangement from others, hypervigilance, problems with concentration, and sleep disturbances, a depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. While the Veteran also complained of suicidal and homicidal ideation, the Veteran’s symptoms were described as mild. The private psychological assessment in 2017 noted symptoms involving difficulties with concentration and memory, impaired impulse control, and near continuous autonomic arousal secondary to hypervigilance and constant anger. While the examiner opined that the Veteran’s symptoms were consistent with total social and industrial impairment, the manifestations do not include references to symptoms such 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, or disorientation to time or place, or significant memory impairment. On VA examination in 2018, the Veteran was noted to have recurrent, involuntary, and intrusive distressing memories of the traumatic events; avoidance of distressing memories, thoughts or feelings about the traumatic events; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts, sleep disturbance, anxiety, and suspiciousness. The Veteran was noted to be alert and oriented in all spheres, cooperative, with good eye contact and normal speech. Comprehension appeared intact. Thought processes and content were unremarkable and memory and cognition were grossly intact. There was no evidence of auditory or visual hallucinations and insight and impulse control were intact. During the November 2019 VA psychotherapy session, the Veteran was alert, oriented, and oriented. His main symptoms comprised of being fidgety and having a mood that alternated between mood and irritable, but he was otherwise devoid of auditory or visual hallucinations. He also denied any suicidal or homicidal thoughts. He, additionally, reported engaging in community activities such as volunteering services to assist other Veterans in filing claims for VA benefits and making plans to cook and deliver meals to homeless Veterans. He was also able to coordinate efforts with another individual to deliver blankets with the food. Such activities do not show an inability to establish and maintain effective relationships. Regarding other symptoms associated with a 70 percent rating, it is noted that the Veteran has not been noted to have such symptoms as near-continuous panic; difficulty in adapting to stressful circumstances; obsessional rituals; intermittently illogical, obscure, or irrelevant speech; depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. The Board notes that the Veteran did express suicidal ideation, which is one of the symptoms associated with a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 70 percent disability rating. The Veteran has regularly denied thoughts, intent, or a plan involving self-harm in the examination reports since 2016, including in the private psychological evaluation in 2017 and during his November 2019 psychotherapy session. Although that private examiner found that the Veteran was totally disabled by reason of his PTSD, the examination report does not show symptoms that meet the criteria for a rating higher than 50 percent. As such, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate those contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for PTSD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU The Veteran contends that he is unable to obtain or retain substantially gainful employment as a result of his service-connected disabilities. Review of the record shows that in his application for TDIU, dated in December 2016, the Veteran reported that he had four years of college education and work experience as a service officer with a veterans organization and a restaurant manager. He stated that he became totally disabled to work in January 2014. The record shows that service connection is in effect for PTSD, rated 50 percent disabling; OSA, rated 50 percent disabling; the residuals of an injury of the left foot, rated 10 percent disabling until August 2018 and 30 percent disabling from that date; tinnitus, rated 10 percent disabling; and bilateral hearing loss and a right eyelid scar, both rated noncompensable. The Veteran’s combined evaluation was 80 percent until January 2019 and 90 percent thereafter. (It is noted that the Veteran was found to be entitled to a temporary 100 percent rating under the provisions of 38 C.F.R. § 4.30 from November 16, 2018, until January 2019.) Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person 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 disabilities, provided at least one disability 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. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 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, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (included but 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. The Veteran’s primary service-connected disabilities that affect employment are his PTSD, OSA, left foot injury residuals and tinnitus. In a December 2014 award by the Social Security Administration (SSA), the Veteran was shown to be disabled from gainful employment by the SSA by reason of discogenic and degenerative disease of the back and an affective mood disorder. The Veteran was evaluated for vocational rehabilitation in by VA in April 2018. At that time, testing showed that the Veteran was very motivated to work and was in continuous treatment for his PTSD and ankle disorders as well as non-service-connected knee disabilities. A successful outcome was noted to depend on his continued treatment for PTSD. Regarding the Veteran’s OSA, this is demonstrated in VA treatment records dated in August 2016. At that time, he was to be titrated for a CPAP study. Regarding the Veteran’s left foot disorder, an examination was conducted by VA in August 2018. At that time, the Veteran had severe disability affecting left foot traumatic arthritis and calcaneal bone spurs. The foot condition chronically compromised weight bearing. The Veteran was noted to have pain on movement and with weight bearing as well as occasional swelling and interference with standing for an extended period of time. Functional impact was noted to be related to difficulty standing and walking for prolonged periods of time. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran has significant service-connected disabilities, but his OSA is not shown to significantly interfere with employment while he utilizes a CPAP to treat the disorder. While his PTSD is shown to be significant, as noted, the disability is not shown to, in and of itself, cause total disability. In particular, it is noted that during a November 2019 VA psychotherapy session, the Veteran reported having recently assisted 115 Veterans file service connection claims and having plans to cook and deliver plates of food to homeless Veterans. He was also able to coordinate with another individual to deliver blankets along with the food. The Board is appreciative of the Veteran donating his time and efforts to other Veterans in need, but observes that such activities do not suggest an inability to secure or follow a substantially gainful occupation. The Veteran’s foot disorder also may make walking and standing difficult, but it does not cause overall unemployability in combination with the other service-connected disorders. While it is true that the Veteran has been found to be totally disabled by SSA, this is partially the result of a non-service-connected back disorder. Moreover, the 2018 vocational rehabilitation evaluation found him capable of employment. (Continued on the next page)   Under these circumstances, despite the high level of disability rating, the Board does not find his case to be outside the norm so that TDIU would be established. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for TDIU, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.