Citation Nr: 21005197 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-03 320 DATE: January 29, 2021 ORDER Entitlement to an increased disability rating in excess of 20 percent for left femur fracture residuals, having been withdrawn by the Veteran, is dismissed. Entitlement to a higher initial disability rating in excess of 50 percent for traumatic brain injury (TBI) residuals of headaches and memory impairment and/or an earlier effective date for the grant of service connection, having been withdrawn by the Veteran, is dismissed. From May 8, 2012 to May 12, 2016, a disability rating (or evaluation) for posttraumatic stress disorder with major depressive disorder (PTSD) in excess of 50 percent is denied. A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. On September 10, 2020, prior to the promulgation of a decision in the instant appeal, the Board was informed by the Veteran on the record at a virtual Board hearing that the issue of an increased disability rating in excess of 20 percent for left femur fracture residuals was no longer being pursued on appeal. 2. On September 10, 2020, prior to the promulgation of a decision in the instant appeal, the Board was informed by the Veteran on the record at a virtual Board hearing that the issue of a higher initial disability rating in excess of 50 percent for TBI residuals of headaches and memory impairment and/or an earlier effective date for the grant of service connection was no longer being pursued on appeal. 3. From May 8, 2012 to May 12, 2016, the severity, frequency, and duration of the symptoms of the service connected PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. 4. From May 12, 2016, the Veteran has been in receipt of a 100 percent (total) disability rating and special monthly compensation (SMC) at the statutory housebound rate. 5. From October 2, 2014 to May 12, 2016, unemployability was due to a combination of service-connected disabilities, to include PTSD and a right knee amputation. 6. From May 8, 2012 to October 2, 2014, the Veteran was employed in a substantially gainful occupation and was not employed in a protected or sheltered work environment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of an increased disability rating in excess of 20 percent for left femur fracture residuals have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of a higher initial disability rating in excess of 50 percent for traumatic brain injury residuals of headaches and memory impairment and/or an earlier effective date for the grant of service connection have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. For the entire increased rating period on appeal, from May 8, 2012 to May 12, 2016, the criteria for a disability rating in excess of 50 percent for PTSD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411. 4. The criteria for a TDIU have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from January 2000 to August 2006. This matter came before the Board of Veterans’ Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The Veteran testified at a September 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the relevant rating decisions on appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran, representative, or the evidence have raised any specific contentions regarding the duties to notify or assist. 1. Rating Left Femur Fracture Residuals 2. Rating TBI Headache and Memory Residuals Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 19.55. On September 10, 2020, prior to the promulgation of a decision in the instant appeal, the Board was informed by the Veteran on the record at a virtual Board hearing that the issue of an increased disability rating in excess of 20 percent for left femur fracture residuals was no longer being pursued on appeal. Further, the Board notes that in a November 2016 rating decision, the RO granted service connection for a TBI. In rating the residuals, the RO granted a 50 percent disability rating for headache and memory impairment TBI residuals effective May 12, 2016. At the September 2020 virtual Board hearing, the Board was informed by the Veteran on the record that any downstream issues, which would include the initial rating and/or effective date, should they be on appeal, were no longer being pursued on appeal. As the Veteran has withdrawn the appeal regarding these issues, there remain no allegations of errors of fact or law for appellate consideration. See 38 U.S.C. § 7104. Accordingly, the Board does not have jurisdiction to review the issues, and the issues of an increased disability rating in excess of 20 percent for left femur fracture residuals, and a higher initial disability rating in excess of 50 percent for TBI residuals of headaches and memory impairment and/or an earlier effective date for the grant of service connection, will be dismissed. 3. Rating PTSD from May 8, 2012 to May 12, 2016 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2018). Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Under Diagnostic Code 9411, a 50 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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. A 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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. 38 C.F.R. § 4.130. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501 (2012); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). At the outset, the Board notes that in an August 2013 rating decision, the RO granted a disability rating of 50 percent, from 30 percent, for the PTSD, effective May 8, 2012, the date the increased rating claim was received by VA. As such, the Board has considered whether the Veteran first became entitled to a 50 percent, or higher, disability rating at any point during the one year period prior to the date of claim. See Hart, 21 Vet. App. 505. Review of the available evidence of record does not indicate that the Veteran’s worsening mental health symptoms first manifested during the one-year period prior to the May 8, 2012 date of claim. As such, the appropriate effective date for the increased disability rating of 50 percent for PTSD is May 8, 2012, the date of claim for increase. See 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(o) (2018); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Further, the Board notes that in November 2016, the RO granted an increased 100 percent disability rating for PTSD effective May 12, 2016, the date of VA examination showing increased mental health disability symptoms. As this is the maximum disability rating available at law, the Board need only consider whether an increased disability rating is warranted prior to that date; therefore, the Board finds that the relevant rating period on appeal is from May 8, 2012 to May 12, 2016. Throughout the course of this appeal the Veteran and representative have argued that a 100 percent disability rating is warranted for the period from May 8, 2012 to May 12, 2016 due to grossly inappropriate behavior. Further, in a May 2016 brief, the Veteran’s representative also argued that a 100 percent rating was warranted during this period due to the Veteran being a persistent danger to himself or others. Having reviewed all the evidence of record, lay and medical, the Board finds that, from May 8, 2012 to May 12, 2016, the severity, frequency, and duration of the symptoms of the service connected PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. In a May 2012 statement, the Veteran advanced that mood swings and temper had worsened, and that he had reduced intimacy with his wife. Per an April 2013 VA treatment record, the Veteran conveyed having symptoms of nightmares (like or similar to chronic sleep impairment), insomnia (like or similar to chronic sleep impairment), anxiety, and agitation (like or similar to anxiety). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 40 (32nd ed. 2012) (agitation is associated with anxiety). The Veteran denied any suicidal or homicidal ideation. There was no indication from the VA treatment records that the symptoms were of such severity, frequency, and/or duration to result in more than reduced reliability and productivity in occupational or social impairment. A VA mental health examination in July 2013 reflects that the Veteran had separated from his wife, but he was living with a friend, and the Veteran was employed at that time. Symptoms advanced by the Veteran included nightmares, sleep troubles, mild intrusive thoughts, hypervigilance (like or similar to anxiety), exaggerated startle (like or similar to anxiety), and avoidant behavior (like or similar to anxiety). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 40 (32nd ed. 2012) (avoidance is “a conscious or unconscious defense mechanism consisting of refusal to encounter situations, activities, or objects that would produce anxiety or conflict.”) The Veteran conveyed having anger and irritability problems, but denied having been physically violent; therefore, the Board finds the severity, frequency, and duration of the anger and irritability to be in line with no more than a disturbance of motivation and mood or impaired judgment, both of which are contemplated by the 50 percent rating criteria. The Veteran also conveyed that the lack of intimacy with his wife was resulting self esteem problems (like or similar to depression). Upon examination and history as reported by the Veteran, the VA examiner assessed that there were symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Such symptoms are commonly associated with the 30 and 50 percent mental health rating criteria. At the conclusion of the examination, the VA examiner opined that the symptoms were of such severity, frequency, and duration as to result in occupational and social impairment with reduced reliability and productivity. Per the report from a July 2013 VA mental health treatment record, the Veteran conveyed having symptoms of depression and insomnia. When pressed on the question of suicidal ideation, the Veteran expressly denied having any suicidal ideation, advancing that he was “driven to keep going.” The Board notes that in July 2014 the Veteran called the VA National Suicide Prevention Hotline; however, review of the record reflects that the Veteran called the hotline to obtain help with worsening mental health symptoms related to an increase in negative life stressors. Such symptoms included anger, depression, sleep troubles, and relationship problems. The Veteran expressly denied any suicidal or homicidal ideation when asked. Instead, the Veteran merely reiterated that he was seeking additional help as soon as possible due to worsening mental health symptoms. In August 2014, per a VA mental health treatment record, the Veteran conveyed often becoming angry at work. Additional symptoms advanced by the Veteran included depression, hypervigilance, anhedonia (like or similar to depressed mood), and occasional flashbacks (like or similar to disturbances of motivation or mood). Upon examination the Veteran was oriented to all spheres, the Veteran appeared somewhat tense (like or similar to anxiety), and the Veteran denied suicidal ideation, homicidal ideation, hallucinations, or self-mutilation. Thought process was linear and insight and judgment were good. The Veteran was dressed appropriately. A September 2014 VA treatment record reports that the Veteran had a frustrated mood, but denied suicidal or homicidal ideation or hallucinations. VA received a lay statement from the Veteran’s former coworker (Veteran medically retired in January 2015) in May 2016. Per the lay statement, the Veteran would be involved in verbal altercations with both coworkers and customers. The former coworker did not indicate that any of these altercations resulted in violence. Social Security Administration (SSA) records from 2015 reflect that a SSA examiner found that the Veteran’s mental health symptoms had a mild effect on the activities of daily living and a moderate effect on social functioning. Nothing in the SSA records indicates that the Veteran’s mental health symptoms were of such severity, frequency, or duration to result in occupational and social impairment with deficiencies in most areas. The Board notes that the report from a May 2016 TBI examination reflects that the Veteran’s anger issues at work “progressed to a physical encounter on at least one occasion”; however, no other evidence of record supports the assertion that the Veteran was ever involved in a physical altercation at work. Presumably, such a physical encounter would have been documented in the May 2016 co-worker lay statement. Further, at the September 2020 virtual Board hearing, the Veteran explicitly testified that no physical altercations ever occurred at work. At the September 2020 virtual Board hearing, the Veteran testified that symptoms of the PTSD during the period from May 8, 2012 to May 12, 2016 included being easily agitated (like or similar to anxiety) and having difficulty sleeping. The Veteran testified to having confrontations with customers, but again, the Veteran denied any physical altercations. Rather, the Veteran discussed one incident in which a physical altercation “almost” occurred. The Board notes that it has reviewed all medical evidence of record, to include VA and SSA records. Such records do not show any mental health symptoms beyond those discussed above for the period from May 8, 2012 to May 12, 2016. Further, the records do not reflect that, from May 8, 2012 to May 12, 2016, the previously discussed symptoms were of such severity, frequency, and/or duration to result in either occupational or social impairment with deficiencies in most areas, or total occupational and social impairment. The Board has considered whether the Veteran’s mental health symptoms were of such severity, frequency, and/or duration to find that social and occupational impairment caused deficiencies in most areas (warranting a 70 percent disability rating). As discussed above, the evidence of record reflects that the mental health symptoms demonstrated by the Veteran during the rating period from May 8, 2012 to May 12, 2016 have primarily consisted of symptoms either listed in the 30 and 50 percent VA rating criteria, or are like or similar to symptoms found within the 30 and 50 percent rating criteria. During the course of this appeal the Veteran and representative argued that a 100 percent (total) disability rating was warranted due to the Veteran being a persistent danger to himself or others. The weight of the lay and medical evidence of record is against such an assertion. Concerning the question of whether the Veteran was a danger to himself, during the rating period from May 8, 2012 to May 12, 2016, the evidence reflects that the Veteran consistently denied suicidal ideation. While the Veteran did contact the VA National Suicide Prevention Hotline in July 2014, review of the record reflects that the Veteran called the Hotline in an attempt to obtain additional mental health treatment due to an increase in mental health stressors. At that time, the Veteran again denied actually having any suicidal ideation. For these reasons, it cannot be said that during the time period from May 8, 2012 to May 12, 2016 the Veteran had suicidal ideation (as contemplated by the 70 percent rating criteria). As to the question of whether the Veteran was a danger to others, there is no question that from May 8, 2012 to May 12, 2016 the Veteran had significant anger and irritability problems; however, the evidence of record does not support that such irritability and anger ever resulted in violence, to include violence directed towards coworkers and/or clients. While the report from the May 2016 VA TBI examination does indicate that the Veteran was involved in a physical altercation on at least one occasion at work, at the September 2020 virtual Board hearing, the Veteran clarified that this altercation almost came to blows. Absent any significant physical confrontations, the Board does not find that the Veteran’s anger and irritability symptoms were of such severity, frequency, or duration so as to result in impaired impulse control (such as unprovoked irritability with periods of violence) as contemplated by the 70 percent rating criteria. Rather, the Board finds that the severity, frequency, and duration of the symptoms were more in line with being like or similar to disturbances of motivation and mood or impaired judgment, which are contemplated by the 50 percent rating criteria. Regarding the assertion of grossly inappropriate behavior, the Veteran and representative have not pointed to any evidence supporting a finding of grossly inappropriate behavior; rather, the emphasis has been on the Veteran’s anger problems. For the reasons discussed above, the Board has found the Veteran’s anger/irritability symptoms to be more in line with the 50 percent rating criteria. As to occupational impairment, review of the record reflects that the Veteran was employed from May 8, 2012 to January 2, 2015, until medically retiring based on a combination of PTSD and orthopedic symptoms. While anger hindered performance, as the Veteran was able to maintain employment without being fired, such evidence weighs against a finding that the Veteran’s behavioral issues were of such severity, frequency, or duration to result in occupational impairment with deficiencies in most areas. On the question of social impairment, while the Veteran and spouse did separate for a time during the rating period from May 8, 2012 to May 12, 2016, the evidence reflects that the two reconciled. Further, while separated, per the report from the July 2013 VA mental health examination, the Veteran was able to live with a “close” friend. The fact that the Veteran was able to reconcile with his wife and maintain a relationship with a close friend weighs against a finding that the mental health symptoms were of such severity, frequency, or duration to result in an inability to establish and maintain effective relationships (as contemplated by the 70 percent rating criteria). The Board has considered all the mental health symptoms discussed above, including their severity, frequency, and duration. In evaluating these symptoms as they bear on social and occupational impairment, the Board finds that the severity, frequency, and duration are more appropriately consistent with the symptoms contemplated by a 50 percent disability rating for occupational and social impairment with reduced reliability and productivity. As discussed above, a VA examiner in July 2013, after considering the relevant evidence, opined that the symptoms discussed above reflected occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent disability rating. Such a finding is consistent with the other evidence of record, both lay and medical. Considering the above, including the severity, frequency, and duration of the identified mental health symptoms, the Board finds that, for the rating period from May 8, 2012 to May 12, 2016, the PTSD symptoms did not more nearly approximate the symptoms contemplated for a 70 percent disability rating, and, more importantly, the symptoms did not produce either the deficiencies in most areas or degrees of occupational and social impairment required for a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Rather, the severity, frequency, and duration of the Veteran’s symptoms more nearly approximated the level of occupational and social impairment considered by a 50 percent disability rating, namely, reduced reliability and productivity. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for an increased disability rating for PTSD in excess of 50 percent for the rating period from May 8, 2012 to May 12, 2016. 38 C.F.R. §§ 4.3, 4.7, § 4.130, Diagnostic Code 9411. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). 4. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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 or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). This includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. As such, “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71. In this regard, work need not be on a less than full-time basis to be considered marginal. In Faust, the Court affirmed the Board’s denial of TDIU when the claimant had engaged in part-time work which, nevertheless, brought him earnings which exceeded the poverty threshold for one person. Id. at 356 (stating, “[T]he Court holds that where, as in this case, the veteran became employed, as shown by clear and convincing evidence, at a substantially gainful occupation i.e., one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income prior to his having been awarded a 100 percent rating based on individual unemployability such employment constitutes, as a matter of law, a substantially gainful occupation....”). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). VA’s duty to maximize benefits requires it to assess all of a claimant’s service connected disabilities to determine whether any combination of the disabilities establishes eligibility for SMC under 38 U.S.C. § 1114(s) (2012). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). A veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a “total” (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie at 249-50. TDIU From May 12, 2016 During the course of this appeal, in a November 2016 rating decision, the RO granted a 100 percent (total) disability rating for the service connected PTSD from May 12, 2016, and also granted SMC at the statutory housebound rate from May 12, 2016. This is the maximum SMC provided by the rating schedule for this Veteran’s disabilities. As such, based upon RO’s actions in November 2016, any question of entitlement to a TDIU from May 12, 2016 has been rendered moot. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). TDIU From October 2, 2014 to May 12, 2016 For the rating period from October 2, 2014 until May 12, 2016, the Veteran was in receipt of a combined total 100 percent disability rating, but was not in receipt of SMC at the housebound rate. As such, the Board has considered whether the Veteran had a single, separate service connected disability that, alone, could support the grant of a TDIU, resulting in entitlement to SMC at the statutory housebound rate from October 2, 2014 until May 12, 2016. See Buie, 24 Vet. App. at 250-51; Bradley, 22 Vet. App. at 294. At the September 2020 virtual Board hearing, the Veteran testified to having resigned from prior employment due to a combination of the service-connected PTSD and the service-connected right knee amputation. Pursuant to a September 2014 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran conveyed being unemployable due to multiple service-connected orthopedic disabilities. In a subsequent May 2016 VA Form 21 8940, the Veteran advanced being unemployable due to PTSD symptoms and multiple orthopedic disabilities. Review of the medical evidence of record supports that the Veteran is unemployable due to a combination of PTSD and orthopedic symptoms. Having reviewed all the evidence of record, both lay and medical, the Board finds that the weight of the lay and medical evidence demonstrates that, for the period from October 2, 2014 until May 12, 2016, the criteria for a TDIU have not been met or more nearly approximated based on a single service-connected disability, to warrant the grant of SMC benefits at the statutory housebound rate. See Buie, 24 Vet. App. at 250-51; Bradley, 22 Vet. App. at 294. By the Veteran’s own admission, unemployability is due to a combination of service-connected mental health and orthopedic symptoms. As the preponderance of the evidence is against entitlement to a TDIU for the period from October 2, 2014 until May 12, 2016, based on a single service-connected disability for purposes of obtaining SMC at the statutory housebound rate, the benefit of the doubt doctrine is not for application, and a TDIU for the period from October 2, 2014 until May 12, 2016 must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TDIU From May 8, 2012 to October 2, 2014 Finally, the Board has considered whether a TDIU was warranted for the period from May 8, 2012 to October 2, 2014. The Veteran and representative do not deny that the Veteran was working full time until medically retiring in January 2015, and earning an annual income that exceeded the poverty threshold; however, despite this continued full-time and substantially gainful employment, the Veteran and representative are seeking a TDIU for the rating period from May 8, 2012 (date of claim for increased rating) to October 2, 2014. As reflected in testimony at the September 2020 virtual Board hearing, and in various briefs throughout the course of this appeal, the Veteran and representative essentially argue that the Veteran’s excess absenteeism supports that the Veteran worked in a protected/sheltered work environment. Having reviewed all the relevant evidence of record, lay and medical, the Board finds that a TDIU for the rating period from May 8, 2012 to October 2, 2014 is not warranted, as the Veteran was substantially gainfully employed during that period. Further, the weight of the evidence shows that the Veteran’s employment prior to medical retirement was not protected and/or sheltered. VA received a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from the Veteran’s federal government employer in September 2014. Per the VA Form 21-4192, the Veteran was still working full time, earning $33,920 per year, and the Veteran had missed no time in the preceding 12 months due to disability. Further, the employer explicitly denied that concessions had been made for the Veteran due to disability. Subsequently, VA received a new VA Form 21-4192 in July 2016. Per the new Form, the Veteran had medically retired on January 2, 2015 due complications from the service-connected PTSD and right knee amputation. At that time, the former federal employer noted that the Veteran had missed 68 days in the 12 months prior to retiring due to disability; however, the employer again denied having provided the Veteran with any concessions due to disability. Again, throughout the course of this appeal the Veteran and representative have argued that, because the Veteran was able to miss 68 days of work, the Veteran must have been in a sheltered and/or protected work environment. Such an argument is contradicted, however, by a lay statement provided by the Veteran in May 2016. Per the lay statement, the Veteran conveyed being able to miss those 68 days of work by using all vacation and sick days, and by taking advantage of the Family and Medical Leave Act (FMLA). As these are options available to all federal employees with medical disabilities, it cannot be said that the Veteran was being specially sheltered and/or protected from being fired. For the aforementioned reasons, the Board finds the weight of the evidence to be against entitlement to a TDIU for the rating period from May 8, 2012 to October 2, 2014. Per the above, during this time period the Veteran was employed full time in substantially gainful employment, and was not in a sheltered and/or protected work environment. As the preponderance of the evidence is against entitlement to a TDIU from May 8, 2012 to October 2, 2014, a TDIU for the period from May 8, 2012 to October 2, 2014 must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.