Citation Nr: 21067326 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-20 845 DATE: November 4, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's psychiatric symptomatology more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. For the period on appeal, the Veteran did not meet the schedular criteria for TDIU, and the preponderance of the evidence is against finding that his service-connected disabilities render him unable to secure or follow substantially gainful employment so as to warrant referral for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code (DC) 9411. 2. The criteria for an extraschedular TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1970. In his June 2013 Substantive Appeal, the Veteran requested a Board hearing. The Veteran was informed that the Board hearing was scheduled for September 10, 2020. On September 8, 2020, the Veteran stated that he was unable to attend the hearing. He requested that the claim be processed using the information of record. Therefore, the Board will proceed with and address the claim on the merits. In June 2017, September 2018, and February 2020, the Board remanded the claim for entitlement to a rating in excess of 50 percent for PTSD for further development. The Board notes that the ordered developments were conducted, and the matter has now been returned to the Board. Additional evidence has been associated with the Veteran's claims file since the last issuance of the Supplemental Statement of the Case (SSOC). In September 2021, the Veteran waived initial VA consideration of such evidence. Therefore, the Board may properly consider such evidence. Entitlement to a rating in excess of 50 percent for PTSD A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the time of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Posttraumatic stress disorder is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. Under DC 9411, a 50 percent rating is assigned 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 for 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 that 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. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends that his disability is more severe than the rating depicts. The Veteran's VA treatment records note that he was receiving both individual and group treatment for his PTSD. In January, May, and October 2010 and March, August, and December 2011, the Veteran was seen at the Charlotte CBOC: Mental Health Note. The Veteran was calm, friendly, and cooperative. His mood was euthymic, and his affect was appropriate. There were no signs of psychosis, and he denied suicidal and homicidal ideations. He was alert and fully oriented and/or oriented times three. His insight and judgment were fair. In March 2011, the Veteran was afforded a VA examination to determine the severity of his PTSD. The Veteran separated from his wife in 2005. He has a sister with whom he had occasional contact. At the time of the examination, the Veteran was not active socially, and he tended to isolate himself. The examiner noted that the Veteran had a stroke in 2009 that impacted his mobility and cognitive ability. The examiner confirmed the Veteran's PTSD diagnosis. The Veteran did not have a history of suicide attempts, and his issues were not associated with alcohol or other substance use. The Veteran appeared clean, and his psychomotor activity and speech were unremarkable. The Veteran's attitude toward the examiner was cooperative. His affect was constricted, and his mood was anxious. The Veteran was easily distracted, and he had a short attention span. He was of average intelligence and was able to interpret proverbs appropriately. The Veteran was unable to do serial seven's or spell a word forward and backward. He had difficulty following conversation. At times, the Veteran had to ask the other person to review what was said. He was oriented to person, time, and place. His thought process and content were unremarkable. He did not have persistent delusions or hallucinations. He also understood that he had a problem. His behavior was appropriate, and he understood the outcome of his behavior. The Veteran did not have obsessive/ritualistic behavior. The Veteran did not have panic attacks or homicidal or suicidal thoughts. His impulse control was fair. He had not been involved in any episodes of violence. He stated that he attempted to isolate himself from any situation that may lead to conflict. He was able to maintain minimum personal hygiene. The Veteran had slight problems performing household chores. He had no issues grooming, self-feeding, dressing/undressing, driving, or toileting. He had moderate problems shopping, engaging in sports/exercising, traveling, and performing other recreational activities. The examiner found no evidence of impaired thought process or communication during the diagnostic interview. The Veteran's remote and recent memories were normal. His immediate memory was mildly impaired. The Veteran was able to recall the past three presidents and had no difficulty recalling his work history. He was able to recall two of three words after a brief delay. He reported problems with his immediate memory and that he often forgot to do routine tasks. The Veteran experienced recurrent and intrusive distressing recollections of the event including images thought or perceptions. Additionally, he had recurrent distressing dreams of the event, acting, or feeling as if the traumatic event were recurring. The Veteran had intense psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event. He also had physiological reactivity on exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event. The Veteran made efforts to avoid thoughts, feelings, or conversations associated with the trauma. He also made efforts to avoid activities, place, or people that arouse recollections of the trauma. He had markedly diminished interest or participation in significant activities, and he had feelings of detachment or estrangement from others. The Veteran had a restricted range of affect. He had difficulty falling or staying asleep and concentrating. The Veteran was also irritable or had outbursts of anger. He was hypervigilant and had an exaggerated startled response. The Veteran reported having feelings of anxiety and irritability, every day. He was capable of managing his own finances. He once worked as a truck driver; however, his anxiety from PTSD was too severe and made driving dangerous. The examiner stated that the Veteran did not experience total occupational and social impairments due to his PTSD. However, he experienced occupational and social impairment in his thinking, i.e., he had impaired attention and memory and sometimes assumed he was in danger even when in a safe environment. He also had impairment in his family relations, i.e., he isolated himself and had very little contact with any family aside from infrequent contact with his sister. The examiner also stated that the Veteran's reduced reliability and productivity were not due to his PTSD symptoms. The Veteran did not experience occasional decrease in work efficiency, and he did not have intermittent periods of inability to perform occupational tasks. He did not have signs or symptoms that were transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In his June 2013 Substantive Appeal (VA Form 9), the Veteran stated that he suffered from chronic depression, nightmares, flashbacks, anxiety and panic attacks, sleep issues, and long and short term memory loss. He also stated that on several occasion, his medication had been increased. Additionally, he coped with his issues by drinking. He reported experiencing problems with the law and his family. He lost his wife because of chronic depression and drinking. He reported feeling that he never had a quality of life because he could not get away from the horrific experiences of Vietnam. From 2013 to 2016, the Veteran was seen at the South and/or North Charlotte VA Clinic. The Veteran's hygiene and eye contact were fair and/or good. He was oriented times three, and his behavior and attitude were appropriate and/or pleasant. The Veteran's speech was coherent and unimpaired. His mood was average and/or nervous, and his affect was consistent with his mood, euthymic and/or anxious. He had no thoughts of self-harm, paranoia, delusions, or phobia. His thought process was coherent, linear, and goal directed. He denied auditory or visual hallucinations and suicidal and homicidal ideation. His judgment and insight were good. During his April 2017 mental status check, the Veteran's hygiene was fair, and his eye contact was good. He was oriented times three, and his behavior and attitude were appropriate. The Veteran's speech was coherent and unimpaired. His mood was fair, and his affect was consistent with his mood, euthymic, and happy. The Veteran did not have thoughts of self-harm, paranoia, delusions, or phobia. His thought process was coherent, linear, and goal directed. The Veteran denied auditory or visual hallucinations and suicidal and homicidal ideation. His insight and judgment were good. In August 2017, the Veteran was afforded a VA examination to determine the severity of his PTSD. The Veteran's last PTSD examination was in 2011. He reported being separated from his wife at the time but explained having not had any contact with her for about three years. He stated that he had not heard from his daughter in maybe nine or ten years. At the time of the exam, the Veteran resided with a roommate. The Veteran reported having a sister; however, he did not know where she lived. He stated that almost all the people he considered his friends had died. He stated that he was like a bird by itself, just floating. He felt useless. He had not felt suicidal but had asked the question. He stated that because of his stroke, he could not do a lot of the physical things that he used to do. The examiner confirmed the Veteran's PTSD diagnosis. The Veteran did not have more than one diagnosed mental disorder. The Veteran presented as adequately groomed and casually dressed. He was fully oriented to person, place, time, and circumstance. He was fully engaged and exhibited good eye contact throughout the assessment. The Veteran appeared subdued, and his affect was appropriate to content of discussion. His speech was clear and of normal rate and tone. His thought processes were congruent and goal directed. There was no evidence of psychosis, delusions, or perceptual disturbance. The Veteran denied active suicidal and homicidal ideation, plan, or intent. Overall, his judgement and insight appeared intact. The Veteran had recurrent, involuntary, and intrusive distressing memories of the traumatic event and recurrent distressing dreams in which the content and/or affect of the dream were related to the traumatic event. He had intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. He had marked physiological reactions to internal or external cues that symbolized or resembled an aspect of the traumatic events. The Veteran avoided or made efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event. He also avoided or made efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event. The Veteran had persistent and exaggerated negative beliefs or expectations about oneself, others, or the world. He also had persistent negative emotional state and markedly diminished interest or participation in significant activities. He had irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. The Veteran was hypervigilant, experienced sleep disturbance, and had an exaggerated startle response and problems with concentration. The symptoms lasted more than one month. The PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The disturbance was not attributable to the physiological effects of a substance or another medical condition. The Veteran experienced depressed mood, anxiety, suspiciousness, and difficulty in establishing and maintaining effective work and social relationships. He did not have any other symptoms attributable to PTSD. He experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. He was capable of managing his financial affairs. From November 2016 to April 2019, the Veteran was seen at the South Charlotte VA Clinic for a follow up appointment for his PTSD. He stated that he had been sober since 2005. He went to the Vet Center for therapy two times per week. The Veteran stated that his wife died approximately two to three months prior to his appointment. The Veteran stated that him and his wife were together since elementary school. He reported having a daughter who lived 50 miles away. She spoke to him. He attended church on Sundays and denied self-harming thoughts or homicidal ideation. He stated that his family was not large, and he was close to a nephew. He reported that after he went back on his medicine, his depression began to improve. However, sleeping was the same, and he reported having few nightmares. He denied suicidal or homicidal ideation. The Veteran's hygiene and eye contact were good, and he was oriented times three. His behavior and attitude were appropriate and jovial. His speech was coherent and unimpaired. The Veteran's mood and affect were okay. His affect was consistent with his current moods, full. The Veteran had no thoughts of self-harm, paranoia, delusions, or phobia. His thought process was coherent, linear, and goal directed. He denied auditory or visual hallucinations and suicidal and homicidal ideation. His insight and judgment were good. In September 2019, the Veteran was seen at the South Charlotte VA Clinic for his PTSD. The Veteran had been sober since 2005. He went to the Vet Center for therapy two times per week and attended the American Legion. The Veteran stated that he had been doing "pretty well." He reported feeling more hypervigilant. He lived with a woman who helped him out. He reported feeling down and worried but wanted to keep himself busy. He denied self-harming thoughts or homicidal ideation. The Veteran's hygiene and eye contact were good. He was oriented times three. His behavior and attitude were appropriate. The Veteran's speech was coherent and unimpaired. His mood and affect were "Okay." His affect was consistent with his moods, euthymic. The Veteran had no thoughts of self-harm, paranoia, delusions, or phobia. His thought process was coherent, linear, and goal directed. The Veteran denied auditory or visual hallucinations and suicidal and homicidal ideations. His judgement and insight were good. In September and December 2020, the Veteran underwent a limited mental status exam. The examiner confirmed the Veteran's PTSD diagnosis. The Veteran's speech was of normal rate and volume. His thought process was coherent and linear. He denied auditory or visual hallucinations and suicidal and homicidal ideations. His insight and judgment were fair. In September, his mood was alright and good in December. The Board finds that the evidence of record provides highly probative evidence against a rating in excess of 50 percent. The Board recognizes that the Veteran experienced irritable behavior and angry outbursts which correlate to a 70 percent rating. However, he did not have suicidal ideation or plan; obsessive/ritualistic behavior; panic attacks; or issues grooming, i.e., the Veteran was normally adequately groomed, and his hygiene was good. The Veteran's speech was of normal in rate and volume/unremarkable. He was oriented to at least times three and made good eye contact. The Veteran did not have persistent delusions or hallucinations, gross impairment in thought processes or communication. The Board notes that the Veteran's immediate memory, and his attention and concentration were mildly impaired, judgment and insight were either fair or good, and he had difficulty establishing and maintaining effective work and social relationships. The Board notes that these symptoms correlate to a 50 percent rating. However, his symptoms also included depressed mood, anxiety, suspiciousness, and chronic sleep impairment all of which correlate to 30 percent rating. Additionally, the 2017 VA examiner specifically described the Veteran's symptoms 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, which fits squarely with the criteria for a 30 percent evaluation. Even though this description corresponds with a lesser disability rating, the Board will not disturb the current 50 percent disability rating. However, a rating in excess of 50 percent is not available based on these findings. The Board has considered the Veteran and his representative's statements regarding the Veteran's PTSD. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the evidence of record and the VA opinions, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions are outweighed by the evidence of record, to include the VA opinions. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In sum, the preponderance of the evidence is against the assignment of a rating in excess of 50 percent for PTSD. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. 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 as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. "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 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Analysis The Veteran contends that his service-connected disability prevents him from securing and maintaining substantially gainful employment. During his 2011 VA examination, the Veteran stated that due to his psychiatric disorder, he stopped working as a truck driver. The Board takes jurisdiction over the Veteran's claim for TDIU under Rice, which found that where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, part of the claim for increased compensation is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2005, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran completed four years of high school and two years of college. He last worked full-time in construction in October 2004. He reported becoming too disabled to work in 2002, and he noted that his PTSD prevented him from securing and following any substantially gainful occupation. Before and since becoming too disabled to work, the Veteran had not had any education and/or training. From November 22, 2010, the Veteran was service connected for PTSD rated at 50 percent effective May 4, 2007. The Veteran's overall rating was 50 percent. He did not meet the threshold requirement for TDIU. 38 C.F.R. § 4.16(a). Therefore, TDIU is not warranted on a schedular basis. As the Veteran does not meet the schedular requirements for TDIU, the only remaining question is whether he was unable to secure or follow substantially gainful occupation because of his service-connected disability for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16(b). The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. In his March 2011 PTSD examination, the examiner noted that multiple impairments were responsible for the Veteran's inability to work. The Veteran last worked in 2002 as a truck driver. He reported that he had to stop working as a truck driver because anxiety from PTSD was too severe and made driving dangerous. The examiner stated that the Veteran did not experience total occupational and social impairments due to his PTSD. Although he experienced occupational and social impairment in his thinking, he did not experience occasional decreased in work efficiency, and he did not have intermittent periods of inability to perform occupational tasks. The examiner stated that the Veteran's reduced reliability and productivity were not due to his PTSD symptoms. The examiner also noted that the Veteran had a stroke in 2009, and this impacted his mobility and cognitive ability. In his June 2013 Substantive Appeal, the Veteran stated that he attempted to work but could not handle stress. Additionally, he hated being around people. At the time of the statement, he stated that he stayed away from people and prayed that they would leave him alone. In August 2017, the Veteran was afforded a VA examination to determine the severity of his PTSD. The Veteran stated that he last worked 25 to 30 years ago. He explained, "After I came back from Vietnam, I had so many other things going on with my health. It interfered with me trying to go to work. I had really bad pancreatitis." He further explained, "Trying to go to work was really difficult. Then the stroke came." He reports having worked in construction prior to suffering the stroke, indicating that physical limitations primarily restricted his return to work. The examiner stated that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. After considering the medical and lay evidence of record, the Board finds that the preponderance of record does not show that TDIU is warranted on an extraschedular basis. The Board notes that the central inquiry is whether the Veteran's service-connected disabilities, alone, is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). During his 2011 exam, the Veteran reported that he stopped working as a truck driver because the anxiety from his PTSD was too severe. This made driving dangerous for him. Although the examiner stated that the Veteran experienced occupational and social impairment in his thinking, the examiner also stated that the Veteran did not experience total occupational and social impairments due to his PTSD. Additionally, the Veteran's reduced reliability and productivity were not due to his PTSD symptoms, he did not experience occasional decreased in work efficiency, and he did not have intermittent periods of inability to perform occupational tasks. The Board also notes that during his August 2017 VA exam, the Veteran explained that after Vietnam, he had many other health issues that interfered with his ability to try to go to work. He stated that he had really bad pancreatitis, and this made going to work really difficult. Then, he had a stroke. He reported working in construction prior to suffering the stroke. He indicated that physical limitations primarily restricted his return to work. The Board notes that the Veteran is not service connected for pancreatitis or stroke. Based on the Veteran's statements and the evidence of record, the Board finds that the Veteran's PTSD alone does not prevent him from obtaining and sustaining substantially gainful employment, The Board notes that the Veteran was awarded Social Security Administration (SSA) benefits and VA is required to consider the SSA's findings. However, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). While the Board does not doubt that the Veteran's service-connected disability had a significant impact on his employability, the weight of the evidence does not support his contention that his service-connected disability was of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the Board finds that the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. Therefore, the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED