Citation Nr: 21070772 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-57 213 DATE: November 26, 2021 ISSUES Entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disorder, characterized as (post-traumatic stress disorder) PTSD. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. ORDER Entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disorder, characterized as (post-traumatic stress disorder) PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT For the period from March 28, 2013, the effective date of service connection, the Veteran's acquired psychiatric disorder, characterized as PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to recurrent nightmares, anxiety, hypervigilance, depression, disturbances of mood and motivation and social isolation. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an increased initial rating in excess of 50 percent from March 28, 2013 for service-connected PTSD have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1969 to March 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board granted an increase of the Veteran's initial rating for PTSD from 30 percent to 50 percent but denied a rating in excess of 50 percent for that disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded the claim to the Board for further proceedings consistent with the JMPR. Specifically, the parties did not object to the 50 percent rating granted for PTSD, but objected to the Board's analysis denying a rating in excess of 50 percent for that disability. After vacating the portion of the Board's decision, the case was remanded pursuant to 38U.S.C. §7252 (a) for readjudication and compliance with the instructions in the JMPR. The matter was returned to the Board in June 2021 at which time the Board inferred the issue of entitlement to a TDIU based off the record, noting it was part and parcel to the Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded the matter for further evidentiary development and to adequately address the CAVC remand directives. As will be described below, the Board finds that there has been substantial compliance with its remand directives and the matters are once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Further, while adjudication of TDIU is part of this decision, there is no lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. As it pertains to the issue of TDIU, the Board finds that further evidentiary development is required before this claim on appeal can be adjudicated. Increased Ratings - General Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. This practice is known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disorder, characterized as (post-traumatic stress disorder) PTSD. Legal Standards PTSD The Veteran's acquired psychiatric disorder to include PTSD is rated under Diagnostic Code 9411, covering PTSD. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned for 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned 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 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. Use of the term "such as" in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign to a rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of the regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. "[I]n the context of a 70 [percent] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Therefore, although the Veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, determining whether the veteran is entitled to a 70 percent disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 118-19. Thus, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a Veteran. Rather, "VA must engage in a holistic analysis" of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). 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 adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. Evidence and Analysis The Veteran's acquired psychiatric disorder, to include PTSD was initially granted service connection with a 10 percent rating effective March 28, 2013. In May 2015 the Veteran filed a notice of disagreement requesting the highest rating allowable by law. In a June 2016 rating decision, the RO granted an increased rating to 30 percent. In July 2016 the Veteran filed a notice of disagreement and subsequently filed a timely appeal to the Board. In an August 2019 decision, the Board increased the Veteran's disability rating to 50 percent for the entire period on appeal. The Veteran contends that his symptoms and occupational impairment are greater than the rating criteria describes for a 50 percent rating. Turning to the evidence of record, an August 2013 Function Report from the Social Security Administration notes that the Veteran reported that his daily activities included exercising, showering, dressing, doing laundry, cleaning, reading and fishing when he could. He described his daily hobbies and interests as reading, watching tv and socializing with friends. He reported that he visited with his friends weekly. He also checked "no" in response to whether he had problems getting along with family, friends, neighbors or others. The Board recognizes that VA and private treatment records reflect that the Veteran has received ongoing treatment for his PTSD during the period on appeal. A May 2014 Veterans Center Intake Assessment notes that the Veteran presented with difficulty concentrating, excessive fatigue, insomnia, irritability, anger and aggression. The Veteran reported having suicidal thoughts but no plans or prior attempts. He also endorsed feelings of despair and hopelessness, though he stated that reasoning takes over. His motor activity was described as tense. It was recorded that the Veteran presented with appropriate speech and affect, was friendly and cooperative and was neat in appearance. The Veteran first received a VA initial PTSD exam in June 2014. The examiner, a psychologist, noted that the Veteran presented neatly dressed and groomed with good hygiene. The examiner described the Veteran to have clear speech with goal directed responses and a logical and organized thought process. During the examination the Veteran reported that he had been married for 42 years and he felt as though he had a good marriage. He reported having 3 children whom he kept in daily contact with by telephone. He also reported that he saw his daughter and grandchildren who lived in town twice a week. The Veteran reported that he was less social than he had been in the past. He reported that in the 1980s he was involved in numerous social activities and clubs but at the end of the 1980s he became more involved in work and withdrew from social activities. He reported having a couple of close friends who lived out of state and he talked to 2 or 3 times a year. The Veteran reported that his primary relationship was with his wife and children and described them as a "tight knit family". He reported that he had previously worked in the construction business and felt as if he had a successful career. He reported that he had retired earlier in 2014. The Veteran was not receiving any mental health treatment including psychiatric medications. He did not report any suicide attempts. The Veteran denied hallucinations, current suicidal or homicidal thoughts and obsessive- compulsive behavior. The Veteran reported that he could get anxious at times but denied significant anxiety. He endorsed feelings of anger and being short tempered. The Veteran also reported issues with sleep impairment, though he did not report nightmares. The Veteran also reported unpleasant thoughts and memories however he was usually able to get the thoughts out of his head in 5-10 minutes. At that time the examiner did not diagnose the Veteran with a mental health disorder and opined that the Veteran's reported symptoms did not cause significant impairment in his social or occupational functioning. In an October 2014 Veterans Center treatment note, the Veteran's readjustment counselor, E.E., wrote that the Veteran reported that he was continuing to experience hypervigilance, reduced productivity interacting in his family life, difficulty socializing with his neighbors, short term memory loss and loss of sleep quality. The Veteran was noted to be performing security checks around his house on a continual basis. In a January 2015 Progress note from the Veterans Center E.E. wrote that the Veteran experienced irritable outburst and was super alert and watchful. In his May 2015 Notice of Disagreement, the Veteran wrote that he was suffering from nightmares and sleepless nights since returning from Vietnam. He also wrote that he had to deal with a quick temper which affects his daily life and lacked empathy for others that he was not close to. The Veteran stated that he was on constant alert and aware of his surroundings which caused him anxiety in certain situations. A comprehensive and detailed assessment of the Veteran's PTSD was completed by E.E. in May 2015. In that note he explained that "the Veteran's severity of his experience and having to remember his past military experiences appears to have aggravated his emotional state of mind." He also noted that the Veteran was oriented to place and time, but that it appears that the Veteran has PTSD issues with hypervigilance, feeling "on guard and jumpy" when around numerous people, avoidance of thoughts about his stressful military experiences, veteran parades and Veterans' Day activities, trouble remembering stressful military experiences, a loss of interest with most activities, and feeling like he has a short time to live, with the Veteran reporting that he has irritability, anger outbursts and much frustration. E.E. further noted that the Veteran appears frustrated and developed social impairment with family and the little circle of friends he had after Vietnam; and that it was difficult to get the Veteran to join the Veteran Center group counseling, but that he reluctantly did so due to the urging of his spouse's frustration with him. Further, E.E. noted that the Veteran continues to voice suspicions at others and also at the government; and that the Veteran experiences disturbances of mood and motivation that contribute to his isolation with society. E.E. noted that the Veteran reported that his children complained of his explosive anger issues; his spouse witnessed and commented on his ongoing anger issues; and that his wife told him that his thoughts, nightmares, lack of empathy towards any situation were still with him. In June 2016 the Veteran was afforded another VA examination by the same examiner who completed his June 2014 examination. The examiner observed that the Veteran was dressed neatly and with good grooming and hygiene. The examiner described him as sociable and cooperative during the examination. His speech was clear, and he had an organized and goal- oriented thought process. At that time the Veteran reported that he was still living with his wife and was still close to his children and grandchildren. He stated that although he had three friends who lived in other states, he did not have friends in the area where he lived. The Veteran reported that he had recently traveled with his wife to Asia for four months. The Veteran stated that he had not been gainfully employed since he retired in January 2014. The examiner recorded that the Veteran was going to the gym and working out on a daily basis, able to do errands, work on remodeling his home, watch tv, read and go fishing with his wife. The Veteran reported that although he had attended counseling sessions at the Veterans Center in the past, he was not currently receiving counseling or treatment. He denied any history of psychiatric hospitalization or having taken psychiatric medications. He endorsed feelings of anxiety. The Veteran denied hallucinations, suicidal and homicidal thoughts, and significant obsessive-compulsive thoughts or behaviors. The Veteran reported that he was having issues with sleep and reported about 4-5 nightmares a month. He also reported issues with his temper because he angered quickly but could usually calm himself down in about 2 minutes. He stated that he did not experience anxiety during the day unless he was in crowded situations. The examiner noted that avoidance behavior was reported. At that time the examiner diagnosed PTSD and opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled my medication. The Veteran was afforded another VA examination for his PTSD in October 2018. At that time the examiner, a psychologist, continued the diagnosis of PTSD. The examiner observed that the Veteran was dressed neatly with good hygiene. He was described as intelligent, rational and with a goal- oriented thought process. He was noted to have excellent short- and long-term memory. The examiner did observe some spontaneous speech as well as irritability, hypervigilance and hyperarousal. The Veteran reported that he was still married to his wife of 46 years. He reported that his wife traveled a lot to Asia. He was still retired, though he stated that when he did work it served as a distraction to his PTSD symptoms. The Veteran stated that without the distraction and his wife frequently traveling he had a lot more time to himself for his thoughts and memories. He stated that if it was not involving his family it was difficult for him to leave his house. He reported that he did attend some counseling services at the local Veterans Center but had problems relating to the other group members. He denied the use of any psychiatric medication. The Veteran endorsed symptoms of anxiety, suspiciousness, chronic sleep impairment and disturbances of mood and motivation. The Veteran reported that he was frustrated by his irritability and temper and described it as a volcano. He denied being suicidal or homicidal. The examiner noted that the Veteran possessed a good coping skillset and was disciplined and resilient. He did report that he watched tv and read but always avoided dramas. The examiner noted that the Veteran possessed good social skills and intelligence as it related to specific events and topics, and continued to be sought out for his expertise in the construction field. The Veteran reported that he had "by now buried the family and the few friends with whom he maintained contact with in the past." The examiner notes that it was his opinion that the Veteran may have "filtered" his psychiatric symptoms somewhat during his June 2014 and June 2015 VA examinations. The October 2018 examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran provided a lay statement as an addendum to his February 2021 VA Form 21-8940. The Veteran reported feelings of heightened anxiety as well as angry outbursts. He also wrote that he experienced suicidal thoughts. He reported that he has had some individual therapy but has had issues trusting people enough to open up. He wrote that it was better for everyone if he isolated himself so that he did not take his rage out on anyone. He reported that he would pace around the house over and over checking every window and door. The Veteran described having nightmares 4-5 times a week for 50 years. The Veteran was most recently afforded a VA examination for his PTSD in March 2021. The examiner, a psychologist, opined that the Veteran had 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. The examiner noted that the Veteran was appropriately groomed and dressed. The examiner noted that the Veteran had a logical and goal directed thought process. The examiner described is mood as generally euthymic with a range of affect that was congruent to the context of the conversation. The Veteran reported having less friends and no longer participating in church, groups or clubs. He reported that he had worked part-time in between 2018-2019 and described personal challenges with individuals who he felt did not follow procedure. He did report that he generally arrived to work an hour early and appropriately completed tasks. His most recent group therapy was in 2018. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. The examiner explained the Veteran's functional impairment as him having anxiety in public which resulted in mild avoidance behavior, nightly sleep disturbances, mild concentration problems and mild interpersonal challenges, such as some difficulty establishing maintaining and meaningful appropriate work relationships. The Veteran reported that he experienced decreased interest in previously pleasurable activities. He denied current suicidal ideation, reporting that his most recent ideation was 2 or 3 months earlier, but he had no specific plans or prior attempts. During a March 2021 Vocational assessment a private vocational consultant, P.T., wrote that the Veteran reported symptoms including sleep disturbances, nightmares, memory issues, experiencing intrusive thoughts and isolationist tendencies. P.T. also noted that during the interview the Veteran's behavior was pleasant and cooperative. In consideration of the above, the Board initially notes that the opinions of the examiners are considered competent and credible to the extent they describe the Veteran' symptoms, but the assertions as to what the appropriate rating level is are outside their purview as these are adjudicatory matters. Therefore, all assertions made as to the proper rating are not entitled to any weight. The Board must assess the probative value and weight of the evidence in light of the entire record. See also Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board also notes that the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Therefore, for the period since the initial effective date of service connection on March 28, 2013, the Board finds that the weight of the evidence demonstrates that the record of severity of the Veteran's disability most closely approximates the criteria for a 50 percent disability evaluation. Undoubtably, the Veteran has experienced several symptoms of his post-traumatic stress disorder which has impacted his daily life since returning from Vietnam. For example, he has been noted to have sleep impairments consisting of recurring nightmares related to traumatic events. He has also been noted to have become more socially isolated, although he has been able to maintain familial relationships with his immediate family. He has been reported to have issues with anger and irritability, although he reported that he was usually able to calm himself down within a few minutes. He has also stated that he performs ritualistic behaviors, such as regular surveillance checks on his home. Furthermore, he has been noted on objective examinations to have feelings of sadness and hopelessness, though in a May 2014 progress note he reported that at these times his reasoning would take over. Although he has experienced these obvious manifestations of his post-traumatic stress disorder, the record simply does not refect the suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as irritability, with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or work-like setting), and/or an inability to establish and maintain effective relationships that would support a rating in excess of 50 percent under Diagnostic Code 9411. Specifically, there is no documentation, clinical or otherwise, of illogical, irrelevant or obscure speech. For example, in his March 2021 VA examiner described the Veteran as having logical and goal directed speech. His speech was described as being euthymic with an affect that was congruent to the conversation. During his October 2018 VA examination, although the examiner did observe some spontaneous speech, he was described as appearing intelligent, rational and with a goal- oriented thought process. In the May 2015 progress note from the Veteran's adjustment counselor E.E., he described the Veteran as being oriented to place and time. Additionally, the Veteran has never been described as neglectful of his personal appearance or hygiene. To the contrary, in clinical settings he has been described as appearing well- groomed and normally dressed. Notably, though the Veteran has reported difficulty adapting in stressful circumstances, the October 2018 examiner noted that the Veteran possessed a good coping skillset and was disciplined and resilient. The Board does acknowledge that the Veteran has reported suicidal ideations during the course of the appeal. However, he has not reported any attempts, plans or intent to harm himself. Therefore, the Board finds the preponderance of the evidence is against a finding that the Veteran's symptoms more nearly approximate the criteria for a 70 percent disability rating at any time during the appeal period. Even more clearly, a rating in excess of 70 percent is not warranted. The Veteran does not have the symptoms required for a 100 percent rating, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, memory loss for names of close relatives or his own name, and intermittent inability to perform basic minimal hygiene. The Veteran's PTSD is manifested by symptoms including, but not limited to, recurring nightmares of his experiences in Vietnam, hypervigilance, anxiety, depression, anger and irritability and social isolation, resulting in occupational and social impairment with reduced reliability and productivity. The current 50 percent rating for post-traumatic stress disorder contemplates such occupational and social impairment. The medical and lay record in this case more nearly approximates the criteria for a 50 percent rating, than a 70 percent rating. Given further that the symptomatology associated with the Veteran's post-traumatic stress disorder has not differed significantly since the filing of his claim the Board finds no reason to assign a rating other than 50 percent for any segment or stage since the award of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Accordingly, the Board finds that the Veteran has been most appropriately evaluated at his current rating and that the preponderance of the evidence is against a rating in excess of 50 percent. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation is a legal one, to be undertaken on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each veteran's education, training, and work history). In the instant case, in the June 2021 Board decision, the Board inferred the claim of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). The Veteran has asserted that his service- connected acquired psychiatric disorder has precluded him from obtaining and maintaining substantially gainful employment. He has also submitted a March 2021 private vocational opinion in which the vocational consultant has opined that due to the Veteran's limitations caused by his service-connected PTSD, he would have been unable to maintain substantial gainful employment during the period on appeal. The Veteran is currently only service- connected for his acquired psychiatric disorder with a 50 percent rating from March 28, 2013. Therefore, the Veteran does not currently meet the percentage threshold requirements for TDIU for the entire period on appeal. However, as mentioned above, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). Therefore, the Board must consider whether the Veteran has met the extraschedular criteria pursuant to 38 C.F.R. § 4.16(b). The Board recognizes that the Veteran's representative has argued in his April 2021 brief that the Board has the authority to make the determination on whether an extraschedular rating is warranted in the first instance. However, as a matter of law, the Board is not permitted to assign an extraschedular rating for TDIU under § 4.16(b) in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). As such, the Board finds that remand is necessary for an opinion from the Director, Compensation Service, regarding the possibility of an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) for the entire period on appeal. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. 2. Contact the Veteran and request he submit or authorize for release any further private treatment records relevant to his TDIU claim. 3. Thereafter, refer the issue of entitlement to a TDIU to the Director, Compensation Service, for adjudication. Please include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16 (b). 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.