Citation Nr: 21064828 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-11 081 DATE: October 21, 2021 ORDER 1. Entitlement to a disability rating in excess of 10 percent for left upper extremity peripheral neuropathy prior to May 9, 2016, and in excess of 20 percent thereafter is denied. 2. Entitlement to a disability rating in excess of 10 percent for right upper extremity peripheral neuropathy prior to May 9, 2016, and in excess of 30 percent thereafter is denied. 3. Entitlement to a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy is denied. 4. Entitlement to a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. 5. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depression is denied. 6. Entitlement to referral for consideration of a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to July 8, 2010, is denied. FINDINGS OF FACT 1. The Veteran failed to report, without good cause, for a scheduled VA examination in conjunction with a claim an increased rating for left upper extremity peripheral neuropathy. 2. The Veteran failed to report, without good cause, for a scheduled VA examination in conjunction with a claim an increased rating for right upper extremity peripheral neuropathy. 3. The Veteran failed to report, without good cause, for a scheduled VA examination in conjunction with a claim an increased rating for left lower extremity peripheral neuropathy. 4. The Veteran failed to report, without good cause, for a scheduled VA examination in conjunction with a claim an increased rating for right lower extremity peripheral neuropathy. 5. Neither the Veteran nor his representative has asserted that the Veteran failed to receive notification of the examination, submitted a statement of good cause for his failure to report for the scheduled VA examination in connection with the claims for increased ratings for (1) left upper extremity peripheral neuropathy; (2) right upper extremity peripheral neuropathy; (3) left lower extremity peripheral neuropathy; and (4) right lower extremity peripheral neuropathy, or expressed a willingness to appear for a VA examination after being informed in a December 2019 supplemental statement of the case and an August 2019 Board decision that he had failed to report for the scheduled VA examination in April 2019. 6. The Veteran's PTSD with major depression has not been manifested by total occupational and social impairment at any point of the appeal period. 7. Prior to July 8, 2010, the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claim for an evaluation in excess of 10 percent for left upper extremity peripheral neuropathy prior to May 9, 2016, and in excess of 20 percent thereafter. 38 C.F.R. § 3.655; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claim for an evaluation in excess of 10 percent for right upper extremity peripheral neuropathy prior to May 9, 2016, and in excess of 30 percent thereafter. 38 C.F.R. § 3.655; Sabonis, 6 Vet. App. at 430. 3. The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claim for an evaluation in excess of 10 percent for left lower extremity peripheral neuropathy. 38 C.F.R. § 3.655; Sabonis, 6 Vet. App. at 430. 4. The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claim for an evaluation in excess of 10 percent for right lower extremity peripheral neuropathy. 38 C.F.R. § 3.655; Sabonis, 6 Vet. App. at 430. 5. The criteria for a disability rating in excess of 70 percent for PTSD with major depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9411. 6. The criteria for referral for an extraschedular TDIU rating are not met prior to July 8, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to March 1971. In November 2017, the Veteran provided testimony in a Board video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In April 2015 and June 2018, the Board remanded the claims for further development. In August 2019, the Board issued a decision that denied the claims listed on the title page. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) with respect to the August 2019 Board decision to vacate and remand the claims back to the Board, which was granted by the Court. The parties to the October 2020 JMPR found that the Board erred when it did not ensure that all of the Veteran's VA treatment records were associated with his claims file. 38 C.F.R. § 3.159(c)(3); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir.2016). Specifically, in the Veteran's August 2016 VA Form 21-526EZ, he reported receiving treatment at the VA Medical Centers (VAMC) in Salisbury, Asheville, and Charlotte, North Carolina, from 2010 to the present day. The parties also noted that the April 2019 rating decision noted VA treatment records from the Salisbury VAMC from August 2007 to April 2019, and such records are not associated with the claims file. Further, a January 2016 mental health note indicated that the Veteran was to follow-up "in 1st available, or as needed." In March 2021, the Board remanded the claims for further development, to obtain such outstanding VA treatment records pursuant to the October 2020 JMPR. There was substantial compliance with the Board's remand directives to decide the claims on appeal at the present time. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Failure to Appear for VA Examinations Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). 38 C.F.R. § 3.655(b) provides, when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. In December 2015, the Veteran was afforded a VA examination in conjunction with his claims for increased ratings for his bilateral upper and lower extremity peripheral neuropathy. In the examination report, the examiner noted, "examiner deems this P[eripheral] N[erves] exam[ination] incomplete and not valid for rating purposes." The examiner explained that the Veteran had multiple diagnoses with overlapping symptoms that could not be differentiated by the examination performed. He added that the Veteran changed his symptoms throughout the examination making it impossible to determine which of his three diagnoses is causing which symptoms or abnormal examination findings and no physical examination was done. It is the Veteran's responsibility to report and cooperate during examinations for the development of his claims. The law has long held that the duty to assist a claimant in the development of an application for benefits is a two-way street. Absent a showing of good cause, refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination for purposes of VA regulations under 38 C.F.R. § 3.655(b). The December 2015 examiner noted that the Veteran was diagnosed with severe spinal stenosis in 2009, which had not been addressed thereafter, and had last seen a neurosurgeon in 2009. The examiner recommended that the Veteran have a consultation with a physiatrist for evaluation and repeat electromyography (EMG)/ nerve conduction study (NCS) of all four extremities and referral to VA neurosurgery if his neck disease progressed. Specifically, the examiner recommended that VA suspend adjudication until the above was completed and indicated that a repeat peripheral nerves examination in several months after the completion of the above may be necessary. He noted that if the EMG/NCS is unchanged from 2009, he would complete an addendum if needed and requested. The examiner also wrote that the Veteran was advised of these issues. Thus, the Veteran was put on notice at the time of the examination that the examiner was unable to make clinical determinations as to the Veteran's symptoms and that additional testing was needed for adjudication of his claims. Given the December 2015 VA examiner's finding that the examination was invalid for adjudication purposes, in June 2018, the Board remanded the claims to afford the Veteran a VA examination for the increased rating claims involving the bilateral upper and lower extremity peripheral neuropathy on appeal. An examination schedule request for the bilateral upper and lower extremity peripheral nerves was created in March 2019. The record reflects that on April 11, 2019, the examination request was canceled due to "no show" by the Veteran. In the April 2019 supplemental statement of the case (SSOC), the Veteran was informed that he did not attend the VA examination scheduled in connection with his claims and did not show good cause of his failure to do so. The SSOC was not returned as undeliverable. There is no documentation in the file to suggest that the Veteran did not receive notification of the examination. Specifically, following the April 2019 SSOC, the Veteran's representative submitted a July 2019 appellate brief and did not assert that the Veteran was not notified of the scheduled examinations, that he had "good cause" for his failure to appear to the scheduled VA examination, and/or that he was willing to report for a VA examination. The parties to the October 2020 JMPR parties agreed that remand was necessary for the Board to set forth an adequate statement of reasons or bases that addresses whether the Veteran's service-connected bilateral upper and lower extremity peripheral neuropathy could be rated based on the evidence of record. 38 C.F.R. § 3.655(a). The Board finds that the Veteran's service-connected bilateral upper and lower extremity peripheral neuropathy cannot be rated based on the evidence of record due to the Veteran's failure report and cooperate in examinations and that the 2019 VA examination was necessary for VA to make a determination as to the severity of the Veteran's peripheral neuropathy of the upper and lower extremities. When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). The Board must determine "(1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination." Turk v. Peake, 21 Vet. App. 565, 569 (2008). Here, as mentioned above, the December 2015 examiner made a specific finding that the Veteran's actions during the examination made it impossible to differentiate which of his three diagnoses was causing specific symptoms. The examiner did not state that such differentiation was impossible due to available medical knowledge. Based on the December 2015 examiner's findings and recommendations, in its June 2018 decision, the Board found that a medical examination was necessary to determine the current severity of the Veteran's bilateral upper and lower peripheral neuropathy disabilities and remanded the claims for a new VA examination, as suggested by the December 2015 examiner. The Veteran failed to appear for the scheduled April 2019 examination without good cause. Importantly, neither the Veteran nor the representative have stated that the Veteran was willing to show up for an examination or establish good cause for his failure to report for the April 2019 examination. The Board acknowledges the Court's holding in Mittleider v. West, 11 Vet. App. 181 (1998), which held that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. In contrast, the December 2015 examiner documented that the Veteran's actions during the examination, specifically "chang[ing] his symptoms throughout the examination" impeded the examiner's ability to differentiate which of the three diagnoses were causing the respective symptoms. The examiner recommended additional testing and a repeat peripheral nerves examination following such testing or that an addendum opinion could be provided if testing remained unchanged from 2009. Thus, the examiner was not stating that differentiating the effects of the service-connected and nonservice-connected disabilities was medically impossible, but rather cooperation from the Veteran, including additional testing and examination, was necessary in order to make the distinctions. Therefore, the Board finds the examination requested within the June 2018 remand was necessary to differentiate the symptoms between the Veteran's service-connected and nonservice-connected disabilities. The Board also finds no evidence that the Veteran did not receive notice of the examination and that the presumption of regularity of the administrative process has not been rebutted by clear and convincing evidence. See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Khyn v. Shinseki, 24 Vet. App. 228 (2011) (providing that the presumption of regularity applies to examinations). At no time since the August 2019 Board decision that denied the claims for failure to report for the scheduled examination has the Veteran attempted to establish good cause for his failure to report for the scheduled VA examination. The Board notes that the duty to assist a claimant is not a one-way street, and the Veteran has failed to cooperate to the full extent in the development of his claims. Wood v. Derwinski, 1 Vet. App. 406 (1991). A claimant is responsible for cooperating with VA in the development of his claims. 38 U.S.C. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). The criteria under 38 C.F.R. § 3.655(a) have been met in that the Board finds that an examination was necessary and that the Veteran failed to report to the scheduled VA examination. The disposition of the claims is contingent on the type of claims at issue. With an original compensation claim, when a claimant fails to report for an examination, the claim shall be based on the evidence of record. The Veteran's "original compensation claim" was received by VA in July 2008, when he submitted a VA Form 21-526, Veteran's Application for Compensation and/or Pension. See 38 C.F.R. § 3.160 (2008) (defining "original compensation claim" as, "The initial complete claim for one or more benefits on an application form prescribed by the Secretary."). The current increased-rating claims are not original compensation claims but are, instead, claims for increase. With respect to the increased rating claims, the scheduled peripheral nerves examination was necessary to evaluate the Veteran's assertion that higher disability ratings were warranted and to determine the current level of severity of the service-connected disabilities. The Veteran failed to report, without good cause, for a scheduled VA examination in conjunction with increase rating claims. As such, the criteria for a denial based on the application of 38 C.F.R. § 3.655 have been met regarding the claims for increased evaluations for service-connected bilateral upper and lower extremity peripheral neuropathy, and the claims "shall be denied" pursuant to the operative regulation. 38 C.F.R. § 3.655(b). 1. Entitlement to a disability rating in excess of 10 percent for left upper extremity peripheral neuropathy prior to May 9, 2016, and in excess of 20 percent thereafter. The Veteran's increased rating claim for service-connected left upper extremity peripheral neuropathy is denied as a matter of law due to his failure to report for a scheduled VA examination without good cause. 2. Entitlement to a disability rating in excess of 10 percent for right upper extremity peripheral neuropathy prior to May 9, 2016, and in excess of 30 percent thereafter. The Veteran's increased rating claim for service-connected right upper extremity peripheral neuropathy is denied as a matter of law due to his failure to report for a scheduled VA examination without good cause. 3. Entitlement to a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy. The Veteran's increased rating claim for service-connected left lower extremity peripheral neuropathy is denied as a matter of law due to his failure to report for a scheduled VA examination without good cause. 4. Entitlement to a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy. The Veteran's increased rating claim for service-connected right lower extremity peripheral neuropathy is denied as a matter of law due to his failure to report for a scheduled VA examination without good cause. Increased Rating 5. Entitlement to a disability rating in excess of 70 percent for PTSD with major depression. The Veteran seeks a disability rating in excess of 70 percent for PTSD with major depression. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 70 percent disability rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. A 100 percent disability rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 70 percent for PTSD. The reasons follow The Veteran was afforded a VA examination in December 2015. The examiner noted a mental disorder diagnosis of PTSD. At the time, the Veteran lived with his wife and his daughter and her children. The Veteran reported that, "they try all the time to keep me active[;] I try to be by myself on the side. They try to keep up with my medicine, but I still have a lot of problems mentally." He also reported that he had not worked since 2009 and noted when he left work, he had difficulties "due to nightmares and issues at work[.] I just couldn't deal with anything anymore. Even now my children they say that I need to calm down." The examiner noted the Veteran was receiving ongoing treatment for mental health at a VA outpatient clinic and in homeless services there. The examiner noted a January 2015 VA outpatient clinic record that reflected nightmares and intrusive memories "getting worse almost every night." The Veteran stated that he was on medications including Bupropion, Sertraline, Prazosin, and Zolpidem Tartrate and that his doctor wanted to increase the medications but could not as a result of high blood pressure. The Veteran reported significant depression in the preceding month with some days that he did not get out of bed due to depression. He indicated that he had feelings of hopelessness and worthlessness but noted "my children they get me up, but I just felt so bad." He denied suicidal or homicidal ideation and reported a potential panic attack, chronic sleep disruption, some weight loss, and some difficulties with memory. The Veteran also reported unwanted memories and nightmares of Vietnam in the preceding month and anger about his experiences with decreased interest in activities and distance from others. He stated that he stayed mostly to himself and had difficulty experiencing positive emotions nad had increased irritability. However, the Veteran stated that his children and wife would tell him that he needs to calm down and would try not to anger. The Veteran also had reported hypervigilance, ease of startle, and difficulties with concentration and sleep. The examiner deemed the Veteran capable of managing his own finance affairs but noted legal issues related to his home being in foreclosure and going through bankruptcy. The examiner found that the Veteran's psychiatric symptoms at the time included depressed mood, anxiety, panic attacks that occurred weekly or left often, chronic sleep impairment, mild memory less, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted that the Veteran continued to meet the diagnostic criteria for PTSD and continued treatment. The examiner wrote it was likely that the Veteran's chronic sleep disruption would impact his ability to perform occupational tasks that required alertness or promptness. She stated that the Veteran's significant irritability and social withdrawal would likely impact the Veteran's ability to perform occupational tasks that require interaction with co-workers, customers, or supervisors. The examiner also noted hypervigilance would likely impact the Veteran's ability to perform tasks that require work in loud, unfamiliar or changing situations and difficulties with attention and concentration that would likely impact his ability to perform tasks that are detail oriented or require learning new processes. When asked which of the following best summarized the Veteran's level of occupational and social impairment with regard to all of the Veteran's psychiatric disorders, the examiner indicated "occupational and social impairment with deficiens in most areas, such as work, school, family relations, judgment, thinking and/or mood," which is the criteria for a 70 percent rating. An April 2016 VA mental health note shows that the Veteran was depressed over a claim for his digestive tumor related to agent orange. His PTSD symptoms were nightmares and flashbacks which were noted to be under control with the current treatment. The Veteran denied any other psychiatric symptoms and any suicidal/ homicidal ideas, intentions or plans. In VA mental health notes, including from March 2017 to December 2017, the Veteran indicated that he would like to go to more depression groups. He was dealing with the death of his wife in December 2016. The Veteran's anxiety and depression were under control and he rated his mood as 5 or 6 out of 10. The Veteran stated that he liked the groups and he wanted to be involved in another one. He was getting adjusted to the life without his wife. The Veteran denied any other psychiatric symptoms and any suicidal/ homicidal ideas, intentions or plans. In May 2021 VA psychiatry records, the Veteran reported that his dreams are better, and he enjoyed his church. His anxiety, depression, nightmares, sleep, and concentration were helped by his psychotropic medications. The Veteran rated his mood/depression as under control and rated it as a 5 or 6 out of 10 severity. The Veteran denied any other psychiatric symptoms and any suicidal/ homicidal ideas, intentions or plans. The preponderance of the evidence is against a finding that the criteria for an increased disability rating in excess of 70 percent for PTSD have been met during the appeal period. Specifically, the Veteran's PTSD has not been manifested by symptomatology more nearly approximating total occupational and total social impairment. The Veteran's PTSD has shown to manifest with difficulty in adapting to stressful circumstances (including work or a work-like setting) and difficulty in establishing and maintaining effective relationships, which is contemplated in the criteria of a 70 percent rating. The Veteran has relationships with his family members, including his children and grandchildren. He had a positive relationship with his wife of 30 years prior to her death in 2018. The Veteran reported he enjoyed his church. These facts affirmatively show that he does not have total social impairment. A 100 percent schedular rating contemplates both total occupational and total social impairment, and the Veteran does not have total social impairment. Multiple VA treatment records show that the Veteran regularly seeks medical care for himself for a variety of issues and is able to manage his treatment and necessary medication appropriately. At the November 2017 video conference hearing before the undersigned, the Veteran was able to answer questions by both the undersigned and the Veteran's representative, which answers were appropriate and responsive. In total, this evidence weighs against a finding of total social impairment, as the Veteran is able to interact appropriately with friends, family, and strangers. VA treatment records throughout this part of the appeal period consistently demonstrate that the Veteran has appropriate appearance, attitude, orientation, memory, knowledge, speech, mood affect, and thought processes. The Veteran exhibited appropriate behavior at the November 2017 hearing. This evidence weighs against a finding of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; 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, which are some of the symptoms that would demonstrate that the Veteran's symptoms warrant a 100 percent rating. The Veteran was also an active participant and cooperative in depression group psychotherapy sessions and was able to manage hardships including the death of his wife in 2018 and an electrical fire of his home in January 2019. The Board has considered the frequency, severity, and duration of all of the Veteran's psychiatric symptoms with respect to their effect on other areas of overall occupational and social functioning. 38 C.F.R. § 4.126(a). The Board has considered the Veteran's risk of self-harm. The preponderance of the evidence, such as the VA examination report and clinical records, is against a finding of risk of self-harm. The Veteran consistently denied suicidal/ homicidal ideas, intentions or plans, including in the medical records discussed above. In sum, the preponderance of the evidence is against a finding that a disability rating in excess of 70 percent for PTSD with major depression is warranted at any point during the appeal period. As the preponderance of the evidence is against the claim for a higher rating to this extent, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 6. Entitlement to a TDIU rating prior to July 8, 2010. Initially, the Board notes that the issue involving TDIU was previously characterized as entitlement to a TDIU rating prior to October 16, 2014, as the Veteran had a combined rating of 100 percent from October 16, 2014 and had alleged entitlement to TDIU based on multiple service-connected disabilities. Thus, it was determined that the TDIU claim had become moot once the Veteran was in receipt of a 100 percent combined disability rating. Within the August 2019 Board decision, it granted a 70 percent rating for PTSD. In an October 2019 rating decision, the RO effectuated the grant and assigned an effective date of July 8, 2010, as that was the date of the Veteran's claim for increase for PTSD. As a result of this award, the Veteran now has a combined 100 percent disability rating as of July 8, 2010. Thus, the issue of entitlement to a TDIU rating is now characterized as whether such benefit is warranted prior to July 8, 2010. The Board reiterates that the Veteran has alleged TDIU due to multiple service-connected disabilities. See VA Forms 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in November 2009 (alleging PTSD, diabetes, and peripheral neuropathy of the upper and lower extremities were the disabilities that prevented him from securing or following any substantially gainful employment) and October 2010 (alleging diabetes, PTSD, and neuropathy were the disabilities that prevented him from securing or following any substantially gainful employment). Thus, once the Veteran was in receipt of a combined 100 percent disability rating, the TDIU claim became moot. The Veteran contends that he was precluded from substantially gainful employment due to PTSD, diabetes and neuropathy since November or December 2008. TDIU may be assigned when the schedular rating is less than 100 percent and the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341 (a), 4.16(a). 38 C.F.R. § 4.16(a) establishes that 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. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be 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 (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court 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 her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board notes that the Veteran's disabilities do not meet the minimum disability rating percentage threshold for consideration of a schedular TDIU rating prior to July 8, 2010. 38 C.F.R. § 4.16(a). For example, prior to July 8, 2010 the Veteran was service connected for PTSD with depression, rated at 30 percent from July 30, 2008; right upper extremity peripheral neuropathy, rated at 10 percent from February 17, 2009; diabetes mellitus, type 2, with mild diabetic nephropathy, rated as 20 percent from February 17, 2009; right lower extremity peripheral neuropathy, rated as 10 percent from February 17, 2009; and left lower extremity peripheral neuropathy, rated as 10 percent from February 17, 2009. These issues present a 30 percent rating from July 30, 2008, and a combined 60 percent disability rating from February 17, 2009. The combined 60 percent rating does not meet the exceptions under 38 C.F.R. § 4.16(a)(1) through (5) to meet the criteria for one disability rated at 60 percent. Thus, the issue before the Board is whether referral for extraschedular consideration of a TDIU rating is warranted prior to July 8, 2010. For clarity purposes, prior to July 8, 2010, the Veteran was not service connected for diabetic nephropathy, left upper extremity peripheral neuropathy, or tinea versicolor. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against referral for consideration of a TDIU rating on an extraschedular basis prior to July 8, 2010. The reasons follow. In an October 2009 VA statement, the Veteran contended that peripheral neuropathy of the upper and lower extremities and PTSD forced him out of the work force. In the October 2009 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran documented he had worked in construction from 1983 to 2008 and completed four years of high school. In the October 2010 submission of the same form, he stated that he had worked in construction from 1975 to 2008 and completed one year of college. The Veteran listed different information in the March 2012 submission of the same form, stating that he worked in construction from 1980 to 2008, and completed two years of college. In each of the forms, the Veteran contended that he was precluded from securing or following a substantially gainful occupation due to his PTSD, diabetes mellitus, type 2, and peripheral neuropathy. In a February 2009 letter from a VA physician, Dr. M.S., he wrote the Veteran had been a patient since February 2008. Dr. M.S. wrote the Veteran had been diagnosed with an injury to his left flank in December 2008 and was advised to avoid lifting objects above 15 pounds at work or at home. Dr. M.S. added that during that appointment, the Veteran had informed him that he was on temporary lay-off because the company did not have any work for him. Dr. M.S. also wrote that the Veteran first informed Dr. M.S. of right hand and arm weakness during a January 2009 appointment, which Dr. M.S. noted was scheduled for that purpose. Dr. M.S. stated that even though the Veteran had noticed the right hand and arm weakness back in 2008, he had not informed the physician of this problem until January 2009. In a February 6, 2009 treatment record, Dr. M.S. noted that he had been informed the above letter was not sufficient, and Dr. M.S. was requested to change the wording. Dr. M.S. took out the wording that noted the Veteran was on temporary lay-off and changed it to stating that since the majority of the Veteran's work involved lifting 15 pounds, he was "effectively unable to work from December 12 onwards, till his left flank pain improved." The Board notes that the reason one leaves a job does not have to be the same reason one cannot subsequently secure and maintain substantially gainful employment. However, here, the Veteran claimed that he left his employment, among other reasons, due to peripheral neuropathy in his upper and lower extremities. He has also alleged leaving work due to peripheral neuropathy and PTSD. However, the record shows that the Veteran stopped working for two reasons, which involved his being laid off because the company did not have work for him and because of the left flank pain/injury. The Veteran is not service-connected for a left flank injury. The statement from the Veteran about being temporarily laid off is supported by the Veteran's employer at that time, who wrote that the Veteran had been out of work since January 2009 due to the fact that the company did not have light duty work available in construction and because the Veteran was unable to perform duties and could not return to work after his short-term disability benefits. In a February 2009 assessment from a private psychologist, Dr. M.P., he wrote that despite urging by his superiors, the Veteran had historically resisted advancement in his field due to concerns about emotional overload (i.e., stress from broader responsibilities and more interaction with co-workers). At a September 2009 VA examination for diabetes mellitus, the Veteran stated that some of the weakness and pain in his right arm was attributed to diabetic neuropathy. The Veteran reported that he had to stop work due to pain in the right arm and weakness in the right arm, as sheet rocking is a physical form of employment. The examiner stated that only some of the weakness and pain in the Veteran's right arm was attributed to diabetic neuropathy, and the examiner did not opine that the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected diabetes. At a September 2009 VA examination for PTSD, the examiner stated that the Veteran was not working and had not worked since October 2008. The Veteran reported that he stopped working mainly because of medical problems. He stated that he missed about two weeks of work and took time off once or twice a week to manage his psychiatric symptoms. The examiner opined that the Veteran experienced a moderate amount of impairment in occupational reliability and productivity if he were physically capable of working. The examiner's conclusion was predicate on the Veteran's inability to physically work, which had not been established and had not been attributed to the Veteran's service-connected disabilities. Several VA examination reports indicate that the Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. For example, in the April 2010 VA examination report for PTSD, the examiner was asked whether the Veteran had total occupational and social impairment due to his PTSD, whether his PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family, relations, work, mood, or school, whether there was reduced reliability and productivity due to PTSD symptoms, and whether there was occasional decrease in work efficiency, and the examiner responded, "No" to each of these questions. The examiner found that the Veteran's PTSD symptoms were controlled by continuous medication, which the Board notes is the criteria for a 10 percent rating for a psychiatric disorder. In an April 2010 VA examination report, the examiner opined that the Veteran did not have any functional impairment or disability due to diabetes or peripheral neuropathy. Specifically, the examiner wrote that the Veteran's right upper extremity was confirmed to have diabetic neuropathy of the sensory nerves, and a right-sided ulnar and median neuropathy was noted but were mechanical in nature and not secondary to diabetes, and that the ulnar and median neuropathy were most likely what was causing the feeling of right upper extremity weakness. The examiner wrote that neither the diabetes nor the peripheral sensory neuropathy noted on nerve conduction study would limit physical or sedentary employment. The examiner noted that the subjective results on neurological testing done in the office today were "questionable in regard[] to their validity." The examiner also wrote that the Veteran's eye disability had no effect on employment. A January 2011 VA examination report shows the examiner found the Veteran did not suffer any functional impairment or disability in his eyes due to diabetes. In a July 2010 VA psychology note, the Veteran discussed his frustration and concern with the service-connection disability process. He was reportedly angry and frustrated with his current situation, with a primary concern that he was referred to Compensated Work Therapy, by his psychiatrist. He speculated, that if "[VBA representatives]" noticed that he was being referred for work, then he would not be considered for an increase in his service-connected disability. This would indicate that the psychiatrist thought the Veteran was mentally capable at the time to secure employment. This evidence weighs against a finding that the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected PTSD with depression, diabetes mellitus type II, peripheral neuropathy of the right upper and bilateral lower extremities prior to July 2010. In a January 2011 VA examination report, the examiner documented that the Veteran appeared well nourished and was in no acute distress. Posture and gait were noted to be normal. The Veteran was described as alert and oriented, with normal speech, there were no problems with memory, and the Veteran had normal muscle mass and muscle strength in all extremities. Sensory examination was intact to light touch, vibration, position sense, and pain in all extremities. The examiner noted that there were no deficits in muscle strength on detailed motor testing. In an October 2011 VA examination report for PTSD, the examiner found the Veteran to be a poor personal historian. The examiner noted that the Veteran reported several mental symptoms (e.g., sleep impairment, irritability, problems with concentration, social isolation) that would be associated with reduced reliability and productivity in an occupational setting, regardless of whether the work involved physical or sedentary tasks. She indicated that the Veteran did not provide any specific or exact information of why he stopped working in a previous April 2010 examination, just that, "I couldn't think. All these things just started to happen to me." The examiner also referenced a previous evaluation where the Veteran indicated he stopped working due to his physical conditions and limitations and documentation from the Environamics of Charlotte showed that he stopped working in November 2008 because he "could not physically perform job duties." In a December 2010 statement, the Veteran's former employer stated that the Veteran could no longer continue working because the employer did not have any light duty labor available, and the Veteran could not physically perform his duties. The employer noted that the Veteran last worked on November 28, 2008. The employer wrote that the Veteran used up the full amount of short-term disability insurance over a period of 26 weeks, between January 2009 and June 2009. Regarding the Veteran's education, training, skills, and work history, his past occupations include work in construction, specifically as a drywall hanger, from at least July 1994 to April 2009, with the Veteran being out from work beginning in January 2009. A December 2010 VA treatment record reflects the Veteran's report that he was a supervisor for a construction company and had worked as a brick mason in the past. In the TDIU applications submitted by the Veteran, he indicated that he had completed four years of high school and indicated between zero and two years of college in different forms. The Veteran's work experience in various construction fields, supervisory experience, and education demonstrates a capacity for learning and adaptation that would facilitate a return to substantially gainful employment. As to the Veteran's physical ability to perform substantially gainful employment, the evidence shows that the Veteran initially stopped working in January 2009 due to a nonservice-connected left flank muscle injury which prevented him from lifting objects heavier than 15 pounds. Around that time, the Veteran also began complaining of weakness in his right arm, which was variously associated with nonservice-connected carpal tunnel syndrome, nonservice-connected cervical spondylosis, and a nonservice-connected right shoulder tendon tear. Repeated VA exams revealed that there was no employment impact due to service-connected peripheral neuropathy of the Veteran's right upper and bilateral lower extremities and the Veteran's service-connected diabetes mellitus, type 2. The Veteran's previous employer indicated that the Veteran did not return to work after the end of his short-term disability period due to the fact that there was no light duty work available. In the January 2011 VA examination report, the examiner found that the Veteran had normal muscle mass and muscle strength in all extremities. Sensory examination was intact to light touch, vibration, position sense, and pain in all extremities. The examiner noted that there were no deficits in muscle strength on detailed motor testing. The fact that the Veteran had normal muscle mass in all four extremities establishes that the Veteran was using his extremities. There was also clinical findings of normal sensory examination of all three service-connected extremities. The totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level. The Department of Labor's Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e., up to one third of the time), and/or a negligible amount of force frequently (i.e., from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. As to the Veteran's ability to perform the mental requirements of substantially gainful employment, the Board acknowledges that the Veteran reported a range of psychiatric symptoms relating to his PTSD, including sleep difficulties, depression, and memory and concentration deficits. However, the Veteran's treatment records reflect generally unremarkable findings on mental status examination, including that the Veteran was regularly found to be fully alert and oriented with intact cognitive functioning, including intact memory, judgment, and insight, normal speech, normal thought content/process, intact memory, and adequate attention and concentration. The Veteran was noted to be generally attentive and an active participant in PTSD group sessions with generally stable mood and no verbalized suicidal or homicidal ideation, plan or intent. The Veteran's PTSD symptoms could be accommodated by a limitation to jobs that could be performed in a controlled environment, which allow the Veteran independence, so as to limit excess stress and interpersonal conflict. Thus, the weight of the evidence shows that the Veteran's service-connected PTSD does not preclude him from performing the mental requirements of 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 work that would result in income at the level of substantially gainful employment. For example, given the Veteran's experience in construction, particularly drywall and brick masonry, there are many occupations which would be suitable to the Veteran. Such occupations include work in materials procurement, ordering the necessary materials needed for construction projects, and inspection of drywall and masonry work performed. These jobs would utilize the Veteran's many years of experience in construction while minimizing physical exertion. Further, while some social interaction is required, it is not constant and the Veteran has been shown to be able to manage interaction well, including during medical appointments, PTSD group sessions, church, and with his family. The Veteran's former construction employer did not indicate that the Veteran had an issue with interaction but rather that he was unable to physically perform the duties. These occupation 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 due to his service-connected disabilities during the relevant period. The Board has considered the opinions of the medical professionals; however, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Although the Veteran contends that his service-connected disabilities precluded him from substantially gainful employment prior to July 2010, the record shows that the Veteran initially was unable to work due to a nonservice-connected right flank injury, and that VA examiners have opined that the Veteran's service-connected disabilities have either no impact, or at worst, moderate impact on his ability to work. Reports that the Veteran's ability to secure or follow a substantially gainful occupation is impacted are based on, in part, disabilities for which the Veteran is not service connected. The Board may not consider the impact of nonservice-connected disabilities when ascertaining entitlement ot TDIU. The record ultimately reflects the Veteran was capable of various types of employment, subject to limitations that are not outside the bounds of those adequately contemplated by schedular criteria, prior to July 8, 2010. For these reasons, the Board finds that referral for consideration of an extraschedular TDIU rating prior to July 8, 2010 is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.