Citation Nr: 21076822 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 10-08 407 DATE: December 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder, is denied. Entitlement to service connection for insomnia is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disability did not manifest during service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. Insomnia has not been shown to be etiologically related to service or another service-connected disability. 3. The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for insomnia have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for a 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 had active military service from August 1996 to January 2001 and from August 2001 to April 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2016 (acquired psychiatric disability) and January 2017 (insomnia) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran testified at a hearing before the Board. The transcript of the hearing is of record. However, the Veterans Law Judge (VLJ) who conducted the hearing and signed the previous February 2013 and November 2016 Board remand orders is no longer available to participate in the Veteran's appeal. He was given another opportunity to appear at a hearing before a VLJ who would decide the claims. In August 2019, he testified at a hearing before the undersigned VLJ. The transcript of the hearing is of record. By way of background, the Board remanded the issue of entitlement to an increased rating for the Veteran's right foot disability in February 2013 and November 2016. In the February 2013 Board remand, the Board found that the issue of entitlement to a TDIU was raised by the record and was subsequently added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In December 2019, the Board denied his claim for increased rating of the right foot disability and remanded the issues on appeal for further evidentiary development. Then in June 2021, the Board again remanded the issues on appeal as possible pertinent missing records were identified by the Veteran. In July 2021, VA requested the Veteran to complete Form 21-4142/4142a. No response was received, and the letter was not returned as undeliverable. As such, the Board finds that all development has been completed and the issues are once again before the Board for appellate consideration. Service Connection Generally, to establish service connection a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, major depressive disorder, and anxiety disorder, is denied. After a review of the record, the Board finds that although the Veteran has a current diagnosis of a psychiatric disability, he does not meet the standards for service connection as the preponderance of the evidence is against a finding that there is medical nexus between active service and the current disability. At the outset, the Board notes that the Veteran has current diagnoses of anxiety disorder and major depressive disorder. Specifically, in a March 2013 VA treatment record, he was diagnosed with anxiety disorder. See July 2017 CAPRI. In a January 2019 VA treatment record, he was diagnosed with major depressive disorder. See January 2019 CAPRI. As addressed below, he does not have a current diagnosis of PTSD. As such, the first element of service connection has been met. Despite the lack of any psychiatric complaints in the STRs, he stated that his psychiatric disability manifested as a result of his military service. During the August 2019 hearing, he attested that his psychiatric disability occurred about four to five years ago when his mother passed away. He reported that while stationed in Macedonia and/or Kosovo he witnessed and experienced traumatizing incidents. First, he stated that during a nighttime run, he was in a convoy in the middle of a jungle when they saw people around them. He was instructed to shoot out of the window while the convoy tried to escape. Second, he stated that he witnessed a tank running over a little girl "pretty much right in front of [him]." Third, he reported that he witnessed another incident where a tank ran over a girl when she stepped onto the road. In an October 2015 Memorandum by the Joint Services Records Research Center (JSRRC), it was determined that there was no evidence that the Veteran served in Macedonia or Kosovo and as such stressors were not verified. See October 2015 Administrative Decision. In October 2020, the Military Records Services determined that there was insufficient information to conduct a search to verify the claimed stressor that the Veteran's convoy came under enemy fire. See October 2020 Other. The Board recognizes that the Veteran received hostile fire/imminent danger pay in July 1999 while located in MK. See April 2020 Service Record (SR). However, the Board finds that receiving hostile fire/imminent danger pay does not necessarily mean that the Veteran experienced combat related trauma. The post-service records show that about four years after service, in an October 2007 VA treatment record, it was noted that he sought treatment for his anger management. He affirmed that he had no combat experience in the military. See July 2017 CAPRI. In a March 2013 and July 2013 VA treatment record, he continued to deny having traumatic experiences while in the military. See October 2013 CAPRI and July 2017 CAPRI. However, after he filed an application seeking benefits for his psychiatric disability, in a July 2015 VA treatment record he reported that "he was exposed to fires from bush" as his stressor and did not report any of the other claimed stressors. See October 2015 CAPRI. The Veteran was afforded VA examinations in February 2016, May 2016 and January 2021. In the February 2016 VA examination, the examiner determined that the Veteran did not have a diagnosis of PTSD that conforms to DSM-5 criteria. Instead, he was diagnosed with major depressive disorder and marijuana use disorder. The examiner explained that the Veteran did not currently meet the full diagnostic criteria for a diagnosis of PTSD as his symptoms did not rise to the level of significance for criteria C to H. It appeared that his symptoms are better accounted for by a diagnosis of major depressive disorder and marijuana use disorder. The examiner opined that his psychiatric disability is less likely as not incurred in or caused by fear of hostile military activity while in Macedonia/Kosovo during service as he does not have a current diagnosis of PTSD. In the May 2016 VA examination, the examiner determined that he did not have a diagnosis of PTSD that conforms to DSM-5 criteria. The examiner explained that while criterion A was met, his symptoms did not rise to the level of significance for criteria B to H. The examiner opined that his major depressive disorder and cannabis use disorder are less likely than not incurred in or caused by the fear of hostile military activity in Macedonia during service. The examiner explained that he did not seek treatment for depression until years after his military service and he provided no apparent link between his current mental health symptoms and his military service. In the May 2016 VA addendum opinion, the examiner opined that the Veteran's major depressive disorder and cannabis use disorder are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that his STRs are negative for mental health diagnosis or mental health intervention during active duty service. Further, he did not have a diagnosis of depression within the first six months after service. As for the Veteran's diagnosis of cannabis use disorder, the VANWIHCS librarian has conducted an extensive literature review search on mood/depressive disorders causing cannabis use disorder. The peer reviewed research that was discovered has shown comorbidity, associations with, parallels and or correlations. The research from a statistical standpoint has not shown directionality, or cause effect relationships. As such, the Veteran's cannabis use disorder is of a separate pathogen and is not caused by major depressive disorder. In a January 2021 VA examination, the examiner identified several inconsistencies with the Veteran's statements. For instance, he reported that his mother died in September 2018, but then in August 2019 he stated that his psychiatric problems started about four or five years ago as he has been torn up over the years since his mother passed away. This suggests that his mother died years earlier than 2018. He also denied having a family history of mental health problems but then in a September 2016 treatment record he said that two of his cousins have bipolar affective disorder. He consistently stated that he has four daughters, then in the examination he claimed to have a fifth daughter that was born 23 or 24 years ago. He informed the examiner that he made D's and F's in high school but then told someone else he made C's and D's. He stated that his first mental health treatment was in 2012 but the first mental health appointment found after service was in 2015. He claimed that he sees his current mental health provider every month when in actuality he was seen with his psychiatric provider only three times in the latest year. Based on the numerous inconsistencies, the examiner noted that the Veteran is not a reliable or credible historian. The examiner further noted that the Veteran may have exaggerated or fabricated symptoms and that his credibility and reliability are "certainly suspect." In support of his claim, in October 2019, the Veteran submitted a medical opinion from a private psychologist, Dr. Austin-Small. See October 2019 Medical Treatment Record Non-Government Facility. In Dr. Austin-Small's assessment, the psychologist stated that he reviewed only 55 pages of service and medical records and interviewed the Veteran for about an hour. Based on the 55 pages of record and an hour interview, the psychologist opined that the Veteran's depression and PTSD are more likely than not related to military service. The psychologist explained that the Veteran continues to ruminate over the possibility that he killed someone in a firefight and continues to experience distressing memories whenever he sees young kids about the age of those that he witnessed killed in Macedonia. Moreover, Dr. Austin-Small negated the May 2016 VA examiners' opinion stating that an absence of treatment until 2013 does not mean that the Veteran did not experience social or occupational difficulties. Rather, the Veteran's statement of having difficulties with marital strife, social isolation and work disruption ever since leaving service is a marked departure from his prior good functioning as evidenced by his ability to serve without difficulty prior to Macedonia. These difficulties occurring after returning from Macedonia are credible markers of distress. In this examination, he was given the PCL-M measure, a standardized instrument to assess and diagnosis PTSD. He scored 47 points, just three points shy of the PTSD threshold. Based on the totality of evidence, the psychologist opined that the Veteran has major depressive disorder and marijuana use disorder. However, despite determining that he does not meet the threshold of a PTSD diagnosis, the psychologist opined that the Veteran's depression and PTSD is more likely than not are related to military service. The psychologist explained that the Veteran had no prior experiences of trauma nor any difficulties with functioning or psychiatric distress prior to military service whereas after service, he experienced severe adjustment difficulties, changes in mood, and increased anxiety. The Board affords great probative value to the VA examiners' assessments as they are well supported by, and are consistent with, the most probative evidence of record. The most probative evidence of record reflects that despite receiving mental health treatment for his anger issues as early as 2007, the Veteran denied having combat experience and traumatic experiences in the military. See July 2017 CAPRI, October 2013 CAPRI, and July 2017 CAPRI. The records show that he sought treatment for anger management and consistently denied having combat experience and traumatic experience prior to his application seeking benefits for his psychiatric disability. Further, as stated above, the January 2021 examiner noted numerous inconsistencies with the Veteran's past history, medical history, and family history such that the examiner determined that the Veteran is not a reliable or credible historian as he may have exaggerated or fabricated his symptoms. The Board agrees. As such, the Board finds that his account of his events and his symptoms as to his psychiatric disability are also not credible. The Board affords low probative value to the October 2019 private medical opinion as the psychologist conceded that he reviewed only 55 pages of document. The Board finds that the psychologist's assessment is based on an incomplete history of the Veteran's mental health as it is unclear which mental health documents were made available to the psychologist. Further, the Board finds that the psychologist's rationale that having a marked difference between the Veteran's pre-service and post-service functioning regarding difficulties with marital strife, social isolation and work disruption ten years after service does not take into consideration other external consideration such as financial stressors the Veteran identified. As such, the Board affords low probative value to the October 2019 private medical opinion. The Board acknowledges the Veteran's lay statements about his in-service stressors. However, the Board finds the Veteran to be an unreliable and poor historian. Specifically, as noted above, there are no STRs documenting treatment for a psychiatric disability. Moreover, about four years after service, in an October 2007 VA treatment record, it was noted that he sought treatment for his anger management. He affirmed that he had no combat experience in the military. See July 2017 CAPRI. In a March 2013 and July 2013 VA treatment record, he continued to deny having traumatic experiences while in the military. See October 2013 CAPRI and July 2017 CAPRI. However, after he filed an application seeking benefits for his psychiatric disability, in a July 2015 VA treatment record he reported that "he was exposed to fires from bush" and did not report any of his claimed stressors. See October 2015 CAPRI. Further, as noted above, in the January 2021 VA examination, the examiner noted multiple inconsistencies in his statements which further shows the Veteran is not a reliable historian. Accordingly, the Board finds the Veteran to be a poor historian and provides his lay statements little probative value. The Board also notes that in June 2021, the Board gave the Veteran an opportunity to submit additional medical evidence as he identified possible pertinent missing records. In July 2021, VA requested the Veteran to complete Form 21-4142/4142a. No response was received, and the letter was not returned as undeliverable. Thus, the Board has made a decision based on the available evidence of record. The Board acknowledges the Veteran's statement that his in-service stressors caused his psychiatric disability. See June 2018 VA 21-4138 Statement in Support of Claim. However, such an opinion requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); 38 C.F.R. § 3.307(a)(6)(i). There is no evidence of record reflecting that the Veteran has the specialized training necessary to offer an opinion as to nexus. Thus, the Board finds there is no competent evidence of a nexus between the Veteran's psychiatric disability and service. In conclusion, although the Veteran has established a current disability, the preponderance of the evidence is against establishing a link to his military service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for insomnia is denied. The Veteran contends that he has insomnia either related to service, his service-connected sleep apnea, or related to his psychiatric disability, which the Board observes was denied in this decision. A review of the service treatment records (STRs) shows that the Veteran denied having frequent trouble sleeping in the February 1996 enlistment examination, December 2000 examination, and August 2001 examination. See April 2009 STR Medical, January 2015 STR Medical. However, in the August 2019 hearing, he stated that he has had sleep problems in service due to his service-connected sleep apnea. The post-service treatment records show that in a January 2020 VA treatment record, his insomnia severity index (ISI) score was 17 indicating clinical insomnia. He stated that he has only a mild difficulty falling asleep and severe problems waking up too early. See April 2020 CAPRI. By June 2021, he scored an ISI of 5 indicating no clinically significant insomnia. He reported no difficulty falling asleep and only mild difficulty staying asleep. See July 2021 CAPRI. In the January 2021 VA examination, as noted above, the examiner stated the Veteran reported he has had sleep problems since 2004 or 2005. However, the examiner commented that as a sleep study in 2000 in the military revealed obstructive sleep apnea, the examiner did not find the Veteran to be a reliable or credible historian. The examiner opined that it was less likely than not that the Veteran's sleep problems are anything more than symptoms of sleep apnea. As noted in his most recent sleep study, the Veteran has fragmented sleep caused by obstructive sleep apnea/hypopnea syndrome. This condition is aggravated by poor mask tolerance. When he is able to keep the mask on several days in a row, his sleep noticeably improves. Further, the examiner opined that the Veteran's sleep difficulties may be aggravated by marijuana usage. As noted in the Journal of Addictive Diseases, volume 35, 2016 Issue 2 in an article entitled, "Marijuana Use Patterns and Sleep Among Community-Based Adults," daily marijuana users endorse more sleep disturbance than non-daily users. As such, the examiner determined that the Veteran's sleep problems are adequately explained by OSA, and no further diagnosis of insomnia is needed to explain his sleep difficulties. The Board affords great probative value to the January 2021 VA examiner's assessment as it is well supported by, and is consistent with, the most probative evidence of record. The most probative evidence of record reflects that the Veteran does not have diagnosable insomnia. Rather, he has sleep disturbances. Further, the Board finds it significant that in the treatment records he did not have difficulties falling asleep but rather that he has difficulty staying asleep and waking up too early which is consistent with the examiner's assessment of sleep disturbances rather than insomnia. As referenced above, the Veteran is not a reliable historian, and the Veteran's own reports of his symptoms are not reliable. The VA examiner's explanation is more detailed than the one time finding ISI score indicating clinical insomnia, which the Board affords reduced probative value. In conclusion, the evidence of record is against the claim, and it is denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 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). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). See Johnson v. McDonald, 762 F.3d 1362 (2014). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 3. Entitlement to a TDIU is denied. In March 2009, the Veteran filed a claim of entitlement to service connection for a right foot disability. In the July 2009 rating decision, the RO granted service connection for a right foot disability and assigned a noncompensable rating effective March 30, 2009. The Veteran appealed the rating decision. During the appeal process, in the February 2013 Board decision, the Board found that the issue of entitlement to a TDIU was raised by the record. The Board notes that the Veteran is service connected for sleep apnea rated 50 percent effective March 3, 2009; gastritis (claimed as cyclic vomiting and nausea) rated at 40 percent effective July 22, 2015; right sacroiliac joint dysfunction (low back disability) rated at 20 percent effective July 22, 2015; tinnitus rated at 10 percent effective July 22, 2015; hypertension rated at 10 percent effective July 22, 2015; and callous of the right foot (right foot disability) at noncompensable rating effective March 30, 2009, a 100 percent rating (temporary convalescence) effective May 4, 2009, and again noncompensable rating effective July 1, 2009. The Veteran has a combined evaluation of 50 percent effective March 3, 2009; 100 percent effective May 4, 2009; 50 percent effective July 1, 2009; and 80 percent effective July 22, 2015. Accordingly, the Veteran met the schedular criteria effective July 22, 2015. Prior to July 22, 2015, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. A review of the records shows that the Veteran has a two-year college education. See July 2013 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran's past work history consists of being a loan officer, driver and shipping/receiving, and janitor. See April 2020 Medical Treatment Records Furnished by SSA. The Veteran claimed that his service-connected right foot disability prevents him from securing or following any substantially gainful occupation. See July 2013 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In the August 2019 hearing, the Veteran attested that he last worked around 2016 or 2017. He stated that in 2016 he worked full time at a convenience store. He testified that his original boss allowed him to have a stool by the register so he can sit/stand at will. However, when the convenience store was taken over by new management, they held different standards. Regarding the Veteran's right foot disability, a review of the treatment records shows that in May 2009 the Veteran had his right tibial sesamoid bone removed and had an osteotomy of the fifth metatarsal on the right foot. See August 2009 Medical Treatment Record Non-Government Facility. The procedures were performed to eliminate chronic hypertrophic callouses that emanated from the overlying osseous structures. In an August 2009 follow-up visit, it was noted that lesions were completely eliminated, and the Veteran was now in a pair of regular shoes. In an April 2010 and May 2010 private treatment records, he debrided his plantar calluses of his feet. See June 2010 Medical Treatment Record Non-Government Facility. In an April 2012 private treatment record, he stated that he has chronic right foot pain in the morning or when he has been standing and walking for prolonged periods of time. He stated that his dry calluses are attributing factors. See September 2012 Medical Treatment Record Government Facility. In an April 2013 private treatment record, he complained that the shoe inserts were not helpful, and the previous surgery was not helpful to his right foot calluses. See March 2014 Medical Treatment Record Government Facility. In a March 2014 VA treatment record, he was noted to have two large calluses on the plantar feet with retention hyperkeratosis. See October 2015 CAPRI. He continued to exhibit calluses of his right foot. The March 2016 VA examiner opined that his right foot disability would impact his ability to work as he would have difficulty with tolerating frequent prolonged walking greater than the distance of a medium sized building. A May 2016 VA examiner opined that his right foot disability would impact his ability to work with any weightbearing activities that involve prolonged walking, standing, and climbing repetitive stairs or ladders. In an October 2018 VA treatment record, the Veteran reported that he walks about 20 minutes and sits down to rest due to his right foot callus pain. He also reported being active, completing household tasks, and carrying groceries. He stated that he performs yard work and rakes for about 10 to 15 minutes. See January 2019 CAPRI. The Board notes the multiple third-party statements from his spouse, former spouse, his mother, friends, and past co-worker attesting that the Veteran has difficulties standing, walking, and going fishing or playing pool. However, none of the third-party statements stated that he is prevented from sitting for prolonged periods of time. See April 2010 Buddy / Lay Statement records. Regarding the Veteran's low back disability, the March 2016 examiner opined that due to his low back disability he would have difficulty with lifting, back bending, and twisting. As for his sleep apnea, the May 2016 VA examiner opined that his sleep apnea does not impact his ability to work. The examiner explained that many people work with sleep apnea as long as sleep apnea is appropriately treated. The Veteran appears to have his sleep apnea appropriately treated with the current use of his CPAP machine. As such, he appears to have no demonstrable problems with his activities of daily living. Accordingly, his sleep apnea does not impact his ability to work. Regarding the Veteran's gastritis, in the March 2016 examination, he reported that he has four or more incapacitating episodes per year that last about one to nine days. The March 2016 VA examiner opined that his gastritis would not impact his ability to work. A review of the records shows that he complained of having nausea, vomiting, and/or abdominal pain in February 2015 for about three weeks; May 2015; September 2015, February 2016, June 2017, and June 2019. Concerning the Veteran's hypertension and tinnitus, a March 2016 examiner opined that his hypertension has no impact on his ability to work. A February 2016 VA examiner did not opine as to the impact that the Veteran's tinnitus has on his ability to work. However, the examiner noted that the Veteran reported that he feels that his constant tinnitus contributes to his over-sensitivity to loud noises. The Board notes that in a September 2014 Social Security Administration (SSA) assessment, a physician opined that the Veteran can occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit about for about six hours in an eight-hour workday; occasionally climb ramps/stairs; occasionally climb ladders/ropes/scaffolds; occasionally stoop, kneel, crouch, and crawl; and frequently balance. See April 2020 Medical Treatment Records Furnished by SSA. SSA did not find the Veteran disabled. After considering the foregoing, the Board concludes that the most probative evidence does not show that the Veteran is precluded from gainful employment due to his service-connected disabilities. Based on aforementioned functional limitation as noted in the treatment records and lay and Veteran's statements, the Board finds that the Veteran can at least lift and/or carry 10 pounds frequently and 20 pounds occasionally; sit for about six hours in an eight-hour workday with a sit/stand option; occasionally climb ladders, stairs, ropes, and scaffolds. The Veteran is also limited in his ability to stoop, kneel, crouch, and crawl. The Veteran should have access to the bathroom. As noted in an October 2018 VA treatment record, the Veteran can walk about 20 minutes, carry groceries, perform yard work, rake for about 10 to 15 minutes, and exercise. See January 2019 CAPRI. Further, even the Veteran attested that he is able to work full time at a convenience store as he was given a stool so he can sit/stand at will. Accordingly, the Board finds that the preponderance of evidence weighs against a finding that the Veteran meets the requirements for entitlement to a referral of his TDIU claim for consideration on an extraschedular basis prior to July 22, 2015. As such, the Board declines to remand the claim for referral to the Director of VA Compensation Service for consideration of TDIU on an extraschedular basis prior to July 22, 2015. From July 22, 2015, the Board finds that the Veteran is capable of performing the physical acts required for employment and thus the Veteran's claim for entitlement to a TDIU from July 22, 2015 is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.