Citation Nr: 21064455 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 15-42 107 DATE: October 20, 2021 ORDER 1. The February 24, 2021 decision from the Board of Veterans' Appeals (Board) that denied claims for an increased rating in excess of 30 percent for an anxiety disorder, not otherwise specified, and entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is vacated. 2. Entitlement to an initial evaluation in excess of 30 percent for an anxiety disorder, not otherwise specified, is denied. 3. Entitlement to referral for extraschedular consideration of TDIU prior to May 22, 2017 is denied. 4. Entitlement to a TDIU rating from May 22, 2017, is denied. FINDINGS OF FACT 1. The February 24, 2021 Board decision denied claims of entitlement to an increased rating and TDIU without proper consideration of all evidence of record. 2. The Veteran's anxiety disorder has not been manifested by occupational and social impairment with reduced reliability and productivity. 3. The preponderance of the evidence is against a finding that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for vacatur of the February 24, 2021 Board decision, which denied claims of entitlement to an increased rating and TDIU, have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. The criteria for an increased disability rating for an anxiety disorder in excess of 30 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9413. 3. The criteria for referral for an extraschedular TDIU rating prior to May 22, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). 4. The criteria for entitlement to a TDIU rating from May 22, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1967 to May 1971. These issues were previously denied by the Board in a February 2021 decision. In April 2021, the Board received a Motion for Reconsideration, arguing that the Board did not address evidence submitted with the Veteran's December 2020 brief in support of the Veteran's claims. Specifically, the Veteran's representative pointed to a medical opinion from Steven Etherton, D.O., which he stated supports the Veteran's claims and was not addressed in the February 2021 Board denial. The Board notes that the opinion itself was not attached to the Veteran's December 2020 brief when received by VA and was not included in the claims file at the time of the February 2021 Board decision. However, a summary of the opinion was described in the December 2020 brief. Based on this finding, the Board should have attempted to obtain a copy of the opinion prior to issuing a decision in the matter, consistent with the duty to assist. Accordingly, vacatur of the February 2021 Board decision and reconsideration of the Veteran's claims is warranted. A copy of Dr. Etherton's opinion was added to the claims file in June 2021. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision that granted entitlement to service connection for an anxiety disorder and assigned a 30 percent disability evaluation. In a September 2018 Board decision, the issue of entitlement to an initial rating in excess of 30 percent for anxiety disorder, not otherwise specified, was remanded for additional evidentiary development. Subsequently, the issue of TDIU was raised by both the record and by the Veteran's representative in a May 2020 brief. As the TDIU claim relates to the Veteran's claim for an increased initial rating for anxiety disorder, the relevant period of consideration for TDIU goes back to his date of entitlement to service connection for the anxiety disorder. In August 2020, the Board remanded the matters in order to obtain updated opinions regarding the impact of the Veteran's service-connected disabilities on his employability. These opinions were provided based on medical evaluations completed from August 2020 to February 2021. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has alleged that he suffers significant chronic symptoms relating to his anxiety disorder, including suspiciousness, memory and concentration deficits, sleep difficulties, social isolation, and mood swings. Furthermore, he contends that his combined impairments render him unemployable. He states that he is chronically tired due to obstructive sleep apnea and that he has difficulty sleeping with a CPAP. He reports experiencing constant tinnitus. Additionally, he states that voiding dysfunction relating to a remote prostatectomy requires him to take frequent bathroom breaks with leakage and frequent awakenings during the night. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. In a February 24, 2021 decision, the Board denied the Veteran's increased rating and TDIU claims without consideration of a medical opinion that the Veteran's representative cited in a December 2020 brief. The opinion itself was added to the Veteran's claims file in June 2021. However, the Board concedes that its previous failure to attempt to obtain the medical opinion prior to the February 2021 decision, or to otherwise address the representative's summary of the opinion in the December 2020 brief, is an error which warrants vacatur of the February 2021 Board decision. Accordingly, the February 24, 2021 Board decision that denied the Veteran's increased rating and TDIU claims is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. Given the above, the Board finds that readjudication of the Veteran's claims, with full consideration of the evidence of record, is proper. Increased Ratings 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. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including anxiety disorder: A 30 percent disability rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9413. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas," i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, DC 9413. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. 1. Entitlement to an initial rating in excess of 30 percent for an anxiety disorder, not otherwise specified The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for an anxiety disorder from January 15, 2013. The reasons follow. Treatment records around the time of filing of the Veteran's claim in 2013 indicate that he was treated for depression, described as stable, with only routine medication management. The Veteran underwent a VA examination in October 2013. The Veteran reported symptoms of anxiety, suspiciousness, chronic sleep impairment, and disturbances in mood or motivation. The Veteran reported that his concentration is fairly good, but that he is distractible. He stated that he had noticed a bit of a decline in his memory. However, the examiner stated that the Veteran did not endorse any ways in which this significantly interferes with his functioning. The Veteran stated that if things are going well his mood is "good" and he did not endorse depressive symptoms. The Veteran indicated that he was retired, but still worked part-time seasonally, scanning files to be stored electronically for his son-in-law's medical practice. The Veteran was assessed with an anxiety disorder, not otherwise specified. The examiner indicated the Veteran's level of impairment to be best summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. This assessment is commensurate with a 10 percent disability rating. The Veteran submitted a private psychological evaluation dated in April 2014 from Albert Fink, Ph.D. The Veteran reported that he is easily irritated, has difficulty getting along with people, has trouble sleeping, and is increasingly obsessive and compulsive, stating that he must have "everything just right." His speech was remarkable for a stutter, which he reported to have had its onset during service. The examiner reported previously undocumented symptoms of difficulty establishing and maintaining social relationships, obsessive rituals, and intermittent inability to perform activities of daily living. Although the private psychologist repeatedly referred to the report as a "mental status examination," he never took account of the Veteran's present cognitive functioning other than to note the presence of a stutter and, rather, seemed to rely entirely on the Veteran's self-reporting for his findings. The Veteran reported that he had no history of mental health treatment but that he is prescribed medication for anxiety/depression. He diagnosed the Veteran with severe generalized anxiety disorder with several compulsive features, indicated that the disorder is likely secondary to the Veteran's tinnitus, and also assessed the Veteran with adult-onset fluency disorder (stuttering). Dr. Fink opined that that the Veteran would miss work three or more days per month as a result of his mental problems; that he would not stay focused for at least seven hours of an eight-hour day, two to three times per month; and that the Veteran would frequently decompensate when subjected to normal workplace pressures. He stated that the Veteran's level of impairment was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The psychologist did not indicate that he reviewed the evidence of record, except to dispute the findings of the October 2013 VA examiner, and the Veteran later stated that the report was based on a single phone conversation. As discussed further herein, the assessment of this private examiner is incongruent with the overall evidence of record and was not supported by a contemporaneous accounting of the Veteran's mental state at the time of examination. The Veteran was seen for only routine treatment in 2014. In September of that year, he reported chronic anxious symptoms and stated that his energy and concentration levels were variable. He endorsed mild forgetfulness but stated that it did not impact his functioning. He denied excessive worry, paranoia, and manic symptoms, and said he had only occasional nightmares. On mental status examination, he was found to be calm, pleasant, cooperative, and fully alert and oriented, with fair insight and judgment, normal concentration, a linear, logical thought process, and with no psychomotor agitation, delusions, hallucinations, or suicidal ideation. He was noted to be independent in activities of daily living. He reported that he gets fairly good sleep and that he spends time doing yardwork and helping his daughter and son-in-law with their house. The Veteran underwent another VA examination in June 2015. The Veteran reported continued mood swings, sleep difficulties, and indicated that he had been experiencing crying spells. He reported decreased energy but attributed it to knee impairments. The Veteran was found to be cooperative, alert, and oriented, with good concentration. He appeared in no acute distress and was able to appropriately participate in the interview with no deficits in his ability to provide information. The Veteran reported that his daughter has a big house and he enjoys taking care of the yard, the pool, designing the landscaping, and doing general maintenance. The examiner noted that stuttering was exhibited only very rarely. When asked about his stuttering, the Veteran said it was not a problem, was not focused upon, and did not cause problems for him. The examiner found no evidence to suggest a relationship between stuttering and general military service. Additionally, the examiner found that no diagnosis for fluency disorder could be appropriately listed, given the lack of a full developmental history of language production, a lack of medical documentation and expertise, and given that the Veteran did not suggest stuttering behavior prevents or hinders his occupational functioning and ability to successfully have social relationships. The examiner stated that the Veteran's level of impairment was best summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. This assessment is commensurate with a 10 percent disability rating. In the following years, the record generally reflects stable functioning without specialized mental health counseling or significant exacerbations of the Veteran's symptoms. Routine treatment records in 2017 and 2018 showed the Veteran to be fully alert and oriented with an appropriate mood and affect. He reported that he slept well and his mood was good with medication. He reported that he primarily took care of his wife, who he reported to have been diagnosed with Alzheimer's in early 2018. He stated that he did not do much else, although he reported going on a few short trips and said he was planning a trip to Florida with his daughter's family. In October 2018, the Veteran reported worsening depressive and anxious symptoms with reduced interest and energy, relating to his stressful role as a caregiver. Still, on mental status examination, the Veteran was noted to be calm, pleasant, cooperative, alert, and oriented, with a linear, logical, and goal-oriented thought process, normal concentration, fair insight and judgment, no psychomotor agitation, no delusions or hallucinations, no obsessive or compulsive behavior, and no suicidal ideation. The Veteran reported that he was independent in his activities of daily living, that he drove and went shopping, and that he and his wife frequently go out to eat. He indicated that he spends a lot of time in his garage where he has his tools, computer, and desktop. In November 2018, the Veteran was referred for an individual therapy intake session to address his ongoing issues. The Veteran continued to report many of the same symptoms of stress, depression, reduced energy, and worry, but he had predominantly unremarkable findings on mental status examination. The Veteran presented as alert and oriented with a stable, euthymic affect, a coherent and logical thought process, normal concentration, and fair insight and judgment. He denied suicidal ideation. He was described as cooperative and engaged, and he easily established good rapport. He stated that his mood is mainly affected his wife's worsening condition. The Veteran followed up in January 2019 and reported stable functioning with a "better" mood and improved energy. While he described social isolation, it related to his lack of time for himself due to his wife's desire to be in his company at all times. He was described as "engaged" during the session. The following month, the Veteran continued to report an improved mood and stated that, although his situation as a caretaker had not changed, he coped with it better and no longer lost his temper. He again recorded normal findings on mental status examination. He did not continue with monthly individual psychotherapy sessions thereafter but continued with periodic medical appointments. The Veteran underwent a VA examination in February 2020. He reported continued anxiety issues, suspiciousness, and decreased energy. The Veteran reported that he went out to eat often, shopped and ran errands, and managed household finances, as well as medications, for both him and his wife while continuing in the role of caretaker. He reported that he frequented the local VFW approximately once per week and that he continued to maintain good relationships with his children and grandchildren. The examiner found that the Veteran's level of impairment was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. This assessment is commensurate with a 30 percent disability rating. The Veteran, his daughter, and wife submitted statements in April 2020 describing the nature of the Veteran's condition with continued reports of anxiety, isolation, memory problems, low motivation, sleep difficulties, and mood swings. However, the Veteran continued with only periodic treatment and significant exacerbations in symptoms were not reflected in the Veteran's treatment records. The Board accords more probative value to the clinical findings documented in the VA treatment records, as medical professionals are documenting the Veteran's symptoms as they observe them versus statements submitted in connection with a claim for increased compensation, which statements are not supported by the record. In October 2020, the Veteran again had normal findings on mental status examination and reported that he continued to do yardwork and go to the VFW. Dr. Etherton interviewed the Veteran in December 2020 and provided a private assessment of the Veteran's overall functioning. Dr. Etherton summarized the relevant treatment history and evidence of record. He noted the Veteran to have symptoms of sleep disturbances, fatigue, and concentration and focus deficits; however, these issues were not primarily attributed to the Veteran's anxiety but were noted to relate to his combined disabilities, including sleep apnea, diabetes, voiding dysfunction, and tinnitus, as well as his anxiety disorder. Dr. Etherton opined that the Veteran's combined impairments prevent him from performing substantially gainful employment. This opinion will be further addressed later in this decision. Pursuant to the August 2020 Board remand, the Veteran underwent another VA examination in February 2021. The Veteran reported continued anxiety and depression, sleeping 12 hours per day, with loss of interest, irritability, and difficulty concentrating. The Veteran was described as anxious and he was noted to stutter. He reported that he does not have a social life, primarily due to his wife's condition. He was found to be cooperative, alert, and oriented with a linear thought process, no memory problems, average intelligence, and good insight and judgment. The examiner indicated the Veteran's level of impairment to be summarized as occupational and social impairment with reduced reliability and productivity. However, the examiner separately indicated the Veteran to have no job-related difficulties secondary to service-connected mental health issues. Despite this contradiction, the Board finds the report of the February 2021 VA examiner to show generally stable functioning consistent with the majority of the Veteran's treatment records, and that reported symptom exacerbations have been primarily attributed to situational stressors relating to his wife's condition. While the Veteran has received several psychological assessments indicating varying levels of overall social and occupational impairment, it is the adjudicator that makes the determination of what evaluation is warranted for the Veteran's service-connected anxiety disorder. Based on the above, the Veteran's functioning is commensurate with no more than a 30 percent evaluation, which specifically describes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). This is consistent with the Veteran's depressive and anxious symptoms, and his reports of mild memory loss and sleep difficulties. The 30 percent criteria also reflect the Veteran's overall independence in managing his affairs and activities of daily living. The Veteran has remained independent in his daily affairs, and continues to drive, shop, and manage finances and medication for he and his wife, while also serving as a caretaker. He has reported he enjoys yardwork, landscaping, and performing general house maintenance. He maintained generally satisfactory functioning and recorded many normal findings on mental status examination while being described as calm, pleasant, and cooperative. The treatment records generally show clinical findings that either go against or are absent of the criteria for a 50 percent evaluation, such as circumstantial speech, panic attacks more than once per week, difficulty in understanding complex commands, impaired short and long term memory, impaired judgment, impaired abstract thinking, or difficulties establishing and maintaining social relationships. The Veteran has routinely been found to be fully alert and oriented and to have normal memory, intact judgment and insight, a linear and logical thought process, and normal concentration. He goes out to eat regularly, visits the VFW weekly, and has maintained good relationships with his wife of more than 50 years, his children and his grandchildren, who he sees often. This is evidence against difficulty with establishing and maintaining effective relationships. Despite reports of anxiety and mood swings, treatment records do not show the Veteran to have experienced recurrent panic attacks. He has generally required only routine medication management, which he has found to improve his mood, without the need for urgent care, inpatient treatment, or recurrent and ongoing mental health counseling. This is evidence against a finding that the Veteran's anxiety disorder causes occupational and social impairment with reduced reliability and productivity. Accordingly, based on the Veteran's functioning as reflected by the totality of the evidence during the relevant period, the Board finds that the preponderance of the evidence is against a finding that the service-connected anxiety disorder warrants an initial disability evaluation in excess of 30 percent and that an increased rating is not warranted. As the preponderance of the evidence is against the claim for increased rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for a higher rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to May 22, 2017. Prior to that date, the Veteran was service-connected for voiding dysfunction status post prostate cancer with a 40 percent disability evaluation; anxiety disorder with a 30 percent disability evaluation; tinnitus with a 10 percent disability evaluation; and erectile dysfunction associated with voiding dysfunction status post prostate cancer. This equates to a combined 60 percent rating, which does not qualify for schedular TDIU consideration. Since May 22, 2017, the Veteran has added service connection for sleep apnea associated with anxiety disorder with a 50 percent disability evaluation, and diabetes mellitus, type II, with a 20 percent disability evaluation, for a current combined rating of 90 percent. Therefore, the period on appeal for schedular TDIU consideration begins May 22, 2017. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, prior to May 22, 2017, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran received a Social Security Administration (SSA) disability decision dated in January 2010, which found that he is disabled and unable to sustain fulltime employment due to his combined impairments effective in April 2007. It is noted that such a finding is not binding on any determinations made by the VA. VA and SSA use different definitions and standards for determining disability and SSA also considers limitations from all disabilities, as opposed to the VA's approach of considering only disabilities that are related to service or a service-connected disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has been precluded from securing and following substantially gainful employment for the duration of the period on appeal. The reasons follow. 2. Entitlement to referral for extraschedular consideration of TDIU prior to May 22, 2017, and entitlement to TDIU from May 22, 2017 For purposes of considering the Veteran's TDIU claim, the above findings relating to the severity of the Veteran's anxiety disorder are incorporated herein. As to the Veteran's service-connected disabilities, the Veteran has reported that voiding dysfunction disrupts his life and requires frequent bathroom breaks with leakage and the use of absorbent materials. The Veteran underwent a VA examination relating to this disability in September 2020. He reported he has had increased urine leakage since he had a prostatectomy following a diagnosis of prostate cancer in 2005. He reported a daytime voiding interval of less than one hour. He indicated that he has nocturia three to four times per night. He stated that he cannot go anywhere without absorbent padding due to leakage. He indicated that he changes the padding one to two times per day and he must constantly know where bathrooms are located. The examiner indicated the impact on the Veteran's ability to work is that he is not able to bend down and lift things even under 10 pounds because of the strain and the resulting leakage. The examiner stated that the Veteran must know where bathrooms are located when he travels some place and that the Veteran avoids going to restaurants or stores because of this. The examiner added that the Veteran has leakage when pushing/pulling a cart due to straining. However, such findings are not consistent with the longitudinal evidence of record which shows little treatment or complaints relating his voiding dysfunction. For example, in October 2013, the Veteran denied any urinary problems. Genitourinary examination notes in November 2016 indicated the Veteran to experience no dysuria, discharge, nocturia, or frequency issues. Such normal findings were also reflected on multiple examinations in September 2017, November 2017, and September 2018. The Veteran also denied urinary frequency in May 2019. On a separate examination in November 2017, the Veteran reported nighttime waking to urinate twice per night but otherwise denied urinary frequency issues. In June 2018, treatment notes reflect some reports of "dribbling" and waking up once per night to urinate. The exertional restrictions assessed by the examiner were not supported by testing and are contradicted by the Veteran's various reports of his activities throughout the longitudinal record. It appears that the examiner relied entirely on the Veteran's self-report as to his symptoms at the time of examination without deference to the medical findings of record. While the Veteran is competent to report his observed symptoms, his credibility in this matter is compromised due to recurrent findings documented while the Veteran was seeking treatment, which do not support the severity of voiding dysfunction reported by the Veteran on VA examination. Accordingly, the Board finds the longitudinal treatment records, which reflect the Veteran's concurrent reporting and functioning as recorded by medical experts, to be more probative in assessing the occupational limitations resulting therefrom. Despite the reports on examination, medical records frequently allude to the fact that the Veteran goes shopping without limitations, frequently goes to restaurants, sometimes for multiple meals per day, and is able to travel without restriction. The Veteran's voiding dysfunction has not been noted to interfere with the Veteran regularly going out to eat, performing yardwork and landscaping, traveling, serving as a caretaker for his wife, and is not shown to otherwise compromise his independence in activities of daily living. Regarding the Veteran's obstructive sleep apnea, in 2016 the Veteran reported using his CPAP every night and stated that it was helping his sleep. The record reflects only routine treatment without significant exacerbations of symptoms or decreased functioning. While the Veteran has reported recurrent sleep difficulties, he has also reported sleeping well on multiple occasions, or getting "too much" sleep, suggestive of separate factors being attributable to his reported sleep difficulties. In October 2019, he reported nightly CPAP use and good sleep. This disability is not shown to impact his independence or daily activities. On VA examination in August 2020, the Veteran's sleep apnea was noted to be controlled with continued CPAP use, and he was asymptomatic. The examiner indicated that the Veteran's sleep apnea causes no restrictions on job activities. The Veteran underwent another VA examination for sleep apnea in February 2021. The Veteran reported that he gets sleepy in the car, that he occasionally dozes while driving, and that he has difficulty getting up in the morning with fatigue. However, the Veteran reported no trouble falling asleep and stated that he is not sleepy during the day. The Veteran reported that he sometimes falls asleep in front of the television and would do so in a meeting, and that he has trouble remembering the steps in a task. He stated that he does get tired by the end of the day and sometimes takes a nap with his CPAP. However, the examiner reported that the Veteran had no trouble with focus or concentration and that he does not fall asleep at a desk or have trouble with memory or concentration using a computer. The examiner concluded that the Veteran has no restriction of job activities due to his obstructive sleep apnea. The record also reflects only routine treatment for the service-connected type II diabetes mellitus, and the Veteran has maintained independence in his activities of daily living without associated restrictions. The Veteran underwent a VA examination for assessment of his diabetes in September 2020. The Veteran was noted to require one insulin injection per day. It was noted that his condition does not require him to regulate his activities. He reported visiting his diabetic care provider less than two times per month with no hospitalizations in the past 12 months for ketoacidosis or hypoglycemic reactions, and no loss of weight or strength attributable to diabetes. He was determined to have no complications or other conditions secondary to his diabetes. The examiner indicated that the Veteran's diabetes does not impact his ability to work. The Veteran has not sought routine and recurrent treatment relating to tinnitus, nor do treatment records reflect communication deficits relating thereto or show frequent complaints of tinnitus. Despite the suggestion by the April 2014 opining psychologist that the Veteran's anxiety disorder is attributable to tinnitus, the record does not show that tinnitus has a significant impact on the Veteran's mood or functioning, as addressed by the July 2015 VA examiner. He has reported a history of headaches but stated that they are treated simply by taking Tylenol, and they are not indicated to be incapacitating in nature. The Veteran has predominantly denied headaches on neurological evaluation. The Veteran underwent an audiological VA examination in August 2020. It was noted that the Veteran wears hearing aids for hearing loss but is not service-connected for hearing loss. However, the examiner indicated that, with proper hearing and/or adaptive devices, the Veteran has no work restrictions from hearing loss or tinnitus. Finally, the Veteran has not alleged, nor does the record support, that the Veteran's service-connected erectile dysfunction causes occupational impairment. This finding was also reflected by the opinion of a VA examiner in September 2016. On private assessment by Dr. Etherton in December 2020, the Veteran reported "constant" issues with fatigue, focus, and concentration problems. Dr. Etherton stated that, based on the Veteran's service-connected disabilities, the Veteran "would be required to miss work or leave early three or more days per month due to limitations from void dysfunction, anxiety, and tinnitus particularly, would need more than one additional break per day aside from normally scheduled morning, lunch, and afternoon breaks so he can lie down, rest, etc. and for more than three days per month he would not stay focused for at least 7 hours of an 8-hour work day due to the constant ringing in his ears, frequent restroom breaks that distract his focus, and mental health symptoms." He stated that the Veteran's voiding dysfunction, anxiety, and tinnitus cause poor sleep and difficulty concentrating and staying focused. Dr. Etherton concluded that the Veteran is unable to sustain substantially gainful employment as a result of his service-connected disabilities. The Board notes that Dr. Etherton's conclusions are not supported by the preponderance of the evidence of record. Although the Veteran has reported symptoms of fatigue, and concentration and focus difficulties, the record does not demonstrate these problems to be so severe that they would preclude the Veteran from substantially gainful employment, as stated by Dr. Etherton. Although Dr. Etherton provided a summary of the evidence, he did not cite to specific findings in support of his conclusions. Objective examination findings and the Veteran's activity levels contradict the limitations assessed by Dr. Etherton. Despite the Veteran's reports of fatigue and concentration issues, the Veteran has remained independent in his daily affairs, and continues to drive, shop, and manage finances and medication for him and his wife, while also serving as a caretaker. He has reported he enjoys yardwork, landscaping, and performing general house maintenance. He has not been precluded from such activities due to fatigue, concentration deficits, diabetes, or voiding dysfunction. The Veteran has maintained generally satisfactory functioning and recorded many normal findings on mental status examination while being described as calm, pleasant, and cooperative. The Veteran has routinely been found to be fully alert and oriented and to have normal memory, intact judgment and insight, a linear and logical thought process, and normal concentration. In February 2021, the Veteran reported that he does not struggle to fall asleep and that he is not sleepy during the day. The preponderance of the evidence is against a finding that tinnitus requires the Veteran to lie down or take breaks or causes other functional deficits. The above findings weigh heavily against the Veteran incurring constant issues with fatigue, focus, and concentration. It appears that Dr. Etherton's findings were based on the Veteran's allegations rather the totality of the evidence of record. For these reasons, Dr. Etherton's findings are of limited probative value. Before going into a discussion regarding the Veteran's education, training, skills, and work history, the Board notes that the Veteran has provided inconsistent facts regarding his work history, including when he became too disabled to work, which damages his overall credibility in connection with his TDIU claim. For example, within the VA Form 21-8940, Veteran's Application for Increased Compensation Based On Unemployability, received for the first time in May 2020, the Veteran documented that he became too disabled to work in August 2003. When asked to list all his employment including self-employment for the last five years he had worked, he documented only the job he had performed with Caterpillar from 1973 to 2003. However, within the Veteran's SSA disability application, which he completed in 2008, which is prior to when he completed the VA Form, when asked when his illnesses, injuries, or conditions first interfered with his ability to work, he wrote, "04/30/2007." When asked when he became unable to work, he wrote, "04/30/2007," which is almost four years after the date he provided to VA. Within the SSA application, the Veteran wrote that after he had left Caterpillar, he was a home appraiser from June 2004 to June 2006, which job required him to take measurements, take pictures, and describe properties. He reported working six hours per day, four days per week doing this job. After this job, he documented that he performed file scanning from October 2006 to April 2007, where he scanned doctor office charts and then burned the charts onto a DVD disk. He documented he had performed that job 5 hours per day, three days a week. Thus, in the Veteran's May 2020 TDIU application, he omitted the June 2004 to June 2006 employment as a home appraiser and the October 2006 to April 2007 employment as a file scanner. While he had reported doing the file scanning to VA professionals, which is documented in the treatment records, the Veteran did not also document this work on the VA Form even though he was asked to list all his employment including self-employment for the last five years he had worked. Thus, the Veteran's statement on the VA Form 21-8940 that he became too disabled to work on August 5, 2003 was an inaccurate statement. Above the signature on the VA Form 21-8940, a claimant certifies that "the statements in this application are true and complete to the best of my knowledge." Making false statements while certifying the truth of such statements damages the Veteran's overall credibility. Regarding the Veteran's education, training, skills, and work history, the Veteran reported that he has a high school education. After service, the Veteran worked a 30-year career with Caterpillar as a steam boiler operator, before retiring in 2003. As documented within his SSA disability application, the Veteran was a home appraiser from June 2004 to June 2006, which job required him to take measurements, take pictures, and describe properties. He reported working six hours per day, four days per week doing this job. After this, he did file scanning from October 2006 to April 2007. In July 2015, the Veteran stated that he was worn out from shoveling coal and that the work had taken a toll on him but added that he mostly retired because his kids and grandkids had moved near him and wanted to be closer, so he "threw in the towel." The Veteran continued to work part-time during the appeal period, reporting in October 2010 that he assisted his son-in-law's medical practice seasonally, scanning files so that they can be archived electronically, for approximately three months of the year. He stated that, each year, they must archive a new batch of files and the Veteran goes through them and scans them, working from home. The Veteran has also reported regularly spending time on his computer. This work demonstrates that the Veteran has familiarity with technology and basic computer skills, as well as the capacity to work from home. The Veteran's education and consistent work history demonstrates a capacity for learning, training, and adaptation that are not offset by his service-connected disabilities and which would aid in a return to substantial gainful employment. As to the Veteran's physical capabilities, the evidence supports that the Veteran is capable of performing the physical demands of substantially gainful employment. The Veteran's diabetes, sleep apnea, erectile dysfunction, and tinnitus do not hinder the Veteran's physical capabilities to perform occupational tasks, as discussed above. The limitations assessed by the September 2020 VA examiner regarding the Veteran's voiding dysfunction are not supported by the record, which demonstrates the Veteran has a wide range of capabilities even with his voiding dysfunction, including yardwork and landscaping, traveling, shopping, eating out, and serving as a caretaker. However, the record supports that the Veteran may have some recurrent issues with urinary frequency or leakage, which may be appropriately accommodated by occupations that allow the Veteran ready access to the restroom. Accordingly, the Board finds that the Veteran is physically capable of performing substantially gainful employment. The preponderance of the evidence also shows that the Veteran has the mental capabilities necessary to perform substantially gainful employment. The Veteran's most acute symptoms in recent years have been attributed to stressors related to his role as a caretaker. However, he has demonstrated that he is mentally capable of serving as a caretaker, managing his household finances and the medications of him and his wife, and he remains independent in activities of daily living. He has repeatedly been found to be calm, pleasant, and cooperative, and he frequently visits restaurants and his local VFW. Numerous mental status examinations have shown the Veteran to be fully alert and oriented and to have normal memory, intact judgment and insight, linear and logical thought processes, and normal concentration. Such findings reflect relatively stable functioning and show that the Veteran has the mental capacity to perform a range of occupations. Additionally, the Veteran has reported working part-time annually, on a seasonal basis, scanning files for his son-in-law's medical practice. Although the record does not demonstrate the Veteran's stutter to limit the Veteran's functional abilities, to the extent that it may be psychologically based, it can be accommodated by restricting the Veteran from work that is primarily dependent on verbal interactions with the public. Otherwise, the Veteran's anxiety disorder can be reasonably accommodated by occupations that would not require commercial driving, supervisory duties, or executive decision-making, so as to reduce his exposure to potential stressors. As such, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of full-time work that would result in income at the level of substantially gainful employment. For example, even with the limitations noted above, the Veteran could pursue administrative occupations involving records management, similar to his past seasonal part-time work for his son-in-law's medical practice, positions in which he would have familiarity and a base of knowledge, and which would allow the Veteran ready access to the restroom. Additionally, as the Veteran has demonstrated competence with technology and computers, the Veteran could perform jobs that involve data entry. With data entry, the Veteran is primarily responsible for entering data into a system. These jobs can usually be done from home and would also allow the Veteran easy bathroom access. Furthermore, the Veteran is capable of performing certain janitorial positions, such as a custodian for an office building, which would provide the Veteran ready access to restrooms and would mostly involve repetitive tasks that can be performed independently. The positions discussed above would not require supervisory duties or executive decision-making. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to a TDIU rating or referral for extraschedular consideration of TDIU during the appeal period. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating or referral for extraschedular consideration of TDIU is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.