Citation Nr: 21008047 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-42 537 DATE: February 11, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder was not incurred in, caused by, or aggravated by active service. 2. The Veteran does not meet the schedular criteria for TDIU and is not precluded from participating in substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 3.304(f), 4.125(a). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to April 1979 and from March 1980 to August 1988. The Veteran died in December 2019. The Veteran’s spouse was properly substituted for the Veteran’s pending claims. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran and his wife testified at a travel board hearing before the undersigned. In November 2015, the Board denied service connection for several other disabilities then on appeal and remanded the issues of entitlement to service connection for an acquires psychiatric disorder and entitlement to individual unemployability due to service-connected disabilities for an addendum opinion that reflected consideration of the Veteran’s medical history and assertions. A February 2016 addendum opinion raised the questions of whether the Veteran’s schizoaffective disorder preexisted service and whether the disorder is a congenital or developmental defect. In August 2016, the Board remanded the issues once again for a new VA examination to address whether the Veteran’s schizoaffective disorder preexisted service as well as whether it is a congenital or developmental defect. The issues were remanded again in September 2018 due to an inconsistent medical opinion and for a new clarifying medical opinion on whether the Veteran’s schizoaffective disorder preexisted service and whether it is a congenital or developmental defect. The Board finds that the issue is properly developed and can proceed with adjudication. 1. Entitlement to service connection for an acquired psychiatric disorder, including PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder, is warranted as directly related to events experienced during active service. The Veteran asserted in the April 2013 Board hearing that he had been diagnosed with depression and PTSD as a result of symptoms that first manifested during his period of active service. He specifically referred to the stress associated with his duties as a platoon sergeant as well as marital problems with his former spouse during his period of active service. He added that he had been experiencing symptoms associated with a psychiatric disorder ever since service. Service treatment records (STRs) are silent as to any complaints of or treatment for psychiatric problems. There is no indication that the Veteran experienced any mental disabilities when entering military service. At his April 1988 separation medical examination, his psychiatric state was found to be normal, and he did not make any psychiatric complaints at his April 1988 separation report of medical history. Post-service treatment records reflect that the Veteran has continued to seek treatment for a psychiatric disorder, which has been variously diagnosed as depressive disorder and delusional disorder from VA and private treatment providers. The first instance of treatment was in June 1999 where the Veteran reported having conflicts at work and having a great deal of stress. In the October 2000 VA examination, the Veteran was diagnosed with dysthymic disorder and personality disorder. In June 2008, after being hospitalized, he was diagnosed with delusional disorder In addition, the Veteran was provided a VA examination in April 2015. At that time, the examiner diagnosed the Veteran with schizoaffective disorder, finding that he had not identified any stressors and did not meet the criteria for a diagnosis of PTSD. The examiner further rendered a negative etiological opinion claiming that the Veteran’s schizoaffective disorder is less likely as not caused by, initiated from, and/or exacerbated during his military service. The Veteran was then afforded an addendum opinion in February 2016. The examiner stated that the Veteran has a schizoaffective disorder which is a mental disorder characterized by abnormal thought processes and deregulated emotions. The examiner stated that the exact cause of a schizoaffective disorder is not known but extensive evidence exists for genetic links, brain chemistry, brain development delays or variations, and exposure to toxins or viral illness in the womb. The examiner reiterated from the April 2015 examination report that the Veteran served during peace time did not serve in any combat or war time action, and did not experience any traumatic events; and the Veteran had only fond memories of his time in service with no stressors noted or acknowledged, and he greatly enjoyed his time in service. The examiner observed that there was no credible supporting evidence that the Veteran experienced or was treated for any mental health disorder during service. The examiner concluded that the Veteran’s current symptoms of a schizoaffective disorder are related to genetics and/or are developmental in nature and as such, per VA policy, the Veteran’s schizoaffective disorder was not caused by, initiated from, or exacerbated during service. The September 2016 VA examination reflected that the examiner stated the Veteran’s psychiatric disability did not, by the Veteran’s report and the record, exist prior to active duty. The examiner also stated the disability did not have its onset in service nor is it causally related to service. The rationale provided was that the Veteran made no mental health complaints in service and denied having had ay such complaint. Lastly, the examiner states the Veteran’s schizoaffective disorder is a congenital or developmental defect, as was indicated in the February 2016 addendum opinion. The examiner stated the disorder was not subject to any superimposed disease or injury during service. The examiner stated the conclusions were based on the Veteran’s statements as well as the fact that there is no evidence in the record of mental health issues prior to or during service. The Veteran was afforded another VA examination in October 2019. The Veteran was diagnosed with schizoaffective disorder, depressive type. He reported experiencing “mental and sexual abuse” by his stepfather during his childhood. The Veteran reported experiencing a lot of anger during his military service, but he indicated no mental health treatment during service. The Veteran furthered that he received mental health services after his exit from service. He reported one psychiatric hospitalization where he accused his wife of having an affair and threatened her. The examiner opined that the Veteran’s current diagnosis of schizoaffective disorder may possibly have a genetic factor, but the exact cause of the disorder remains unclear. The Veteran reported a history of child abuse and maltreatment making him vulnerable to a psychiatric condition. However, there was no evidence to support a preservice mental health condition. The examiner furthered that the current diagnosis is less likely than otherwise caused by the Veteran’s military service. The examiner explained that after a careful and meticulous review of the treatment records, there was no evidence ot support the current diagnosis was aggravated beyond its natural progression during service related to duties as a platoon sergeant and marital problems. The examiner further explained that STRs show no mental health diagnosis or treatment and that more than 10 years after service, medical records show treatment for a mental health concern in June 1999 related to conflicts at work. The examiner concluded that based on the evidence reviewed and presented, he could not identify any nexus between the current diagnosis and the Veteran’s military service. There is no evidence to support the onset of the condition during service or the aggravation of the condition related to his service. The examiner found that the Veteran’s schizoaffective disorder clearly and unmistakably existed prior to service, but that it was not aggravated beyond its natural progression by an in-service event, injury, or illness. The Veteran’s wife submitted a statement in September 2020 where she reported that the Veteran’s psychiatric problems started in service when the Veteran dealt with infidelity with his first wife while he was in active duty. With regard to the Veteran’s claim for PTSD, the Board finds that there is no probative evidence of record providing a diagnosis for, or otherwise indicated the presence of, PTSD. The Veteran’s STRs and post-service treatment records are silent for any PTSD diagnosis. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of a current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, in September 2009, a formal finding was issued that explained that stressors could not be verified to establish an in-service event or injury that caused PTSD. The Veteran has, however, received a diagnosis for major depressive disorder and schizoaffective disorder. After review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s psychiatric disorder is related to or aggravated by his military service. There is no evidence of record that a psychiatric disorder was present during his period of active duty nor that it was aggravated. Moreover, according to multiple VA examiners, the Veteran’s schizoaffective disorder is a congenital or developmental disorder that preexisted service. Service connection is available for preexisting conditions aggravated during service beyond the course of their natural progression. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306. The law provides that Veterans are presumed sound upon entry into service except for conditions noted upon entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such disorders as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111 ; 38 C.F.R. § 3.304 (b). History of pre-service existence of disorders recorded at the time of examination does not constitute a notation of such disorders but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1); see also Miller v. West, 11 Vet. App. 345, 348 (1998) the presumption of soundness upon entry into service may not be rebutted without “contemporaneous clinical evidence or recorded history” in the record). When no preexisting condition is noted upon entry into service, a veteran is presumed sound. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). The Secretary must rebut the presumption of soundness with “clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). If the presumption of soundness is rebutted, and the claimed disability is therefore found to have preexisted service, the Veteran can only bring a claim for aggravation of that disability, not for service connection for the disability itself. A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Thus, “a lasting worsening of the condition” - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation unless the underlying condition, as contrasted to symptoms, is permanently worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In the case of congenital abnormalities, service connection may be established for a disease of congenital origin that first manifests during service or preexisted service but progresses beyond its natural progression during service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). On the other hand, a congenital defect is not considered a disability for which service connection can be granted. 38 C.F.R. §§ 3.303 (c), 4.9; see also Quirin at 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, VA policy provides that if the defect was aggravated such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability. Because schizoaffective disorder is not noted at enlistment, the Veteran is presumed sound. As noted above, in order to rebut the presumption of soundness, VA must prove that there is evidence both that schizoaffective disorder clearly and unmistakably existed prior to service and that it clearly and unmistakably was not aggravated by service. In this case, VA examiners have since discussed the service and post-service treatment records and found that the Veteran’s schizoaffective disorder was a congenital disorder that clearly and unmistakably preexisted service. See Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000) (determination of the existence of a pre-existing condition may be supported by a later medical opinion based upon statements made by the veteran about the pre-service history of his/her condition). Congenital conditions, by definition, occur at birth and necessarily pre-exist military service. There is also clear and unmistakable evidence that the preexisting schizoaffective disorder was not permanently aggravated during service. The remaining service treatment records are negative for any evidence that schizoaffective symptoms manifested during service or that any measured worsening of schizoaffective symptoms occurred during service. At the Veteran’s separation examination, there was no indication of any mental health issues. The lack of findings/problems during service and at discharge weighs against a finding of worsening in service. Without a showing of an in-service increase in the disability, the presumption of aggravation is not established for service-connection for schizoaffective disorder. This conclusion is further supported by post-service treatment records. The earliest post-service evidence shows the Veteran seeking treatment for mental health issues in June 1999 concerning conflicts in the workplace. Even if, the Veteran was found to not have a congenital disorder, the evidence weighs against warranting service connection for an acquired psychiatric disorder. As stated above, there was no complaint or symptoms of an acquired psychiatric disorder during military service. Moreover, there is no probative evidence showing continuity of symptoms since service related to any psychiatric disability. The only evidence are lay statements by the Veteran himself claiming that he has experienced psychiatric problems since leaving military service. Additionally, the earliest medical evidence of record indicating the presence of a psychiatric disorder is about a decade after separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the Board notes that the record lacks any evidence connecting his currently diagnosed schizoaffective disorder and his period of active service. The record in this case is negative for any indication, other than the general assertions of the Veteran and his attorney, that an acquired psychiatric disorder is related to his period of active military service. The Board notes that a lay person is competent to give evidence about observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the questions of diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. Thus, neither the Veteran nor his attorney is competent to address the diagnosis or etiology of the Veteran’s disability. Therefore, the Board finds that there is no probative evidence of record, lay or medical, indicating that the Veteran’s current psychiatric disorder was incurred in or otherwise related to active service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. TDIU The Veteran contends that he is entitled to a TDIU because he has not been able to work as a result of his service-connected disabilities since August 2007. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the 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. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Throughout the period on appeal, the Veteran has been in receipt of the following disability ratings: a 10 percent disability rating from June 24, 2008, a 20 percent disability rating from October 20, 2010, and a 40 percent disability from March 29, 2019 for degenerative joint disease of the thoracolumbar spine; a 10 percent disability rating from August 20, 1988 and a 20 percent disability rating from August 17, 2000 for osteoarthritis of the right ankle; a 10 percent disability rating from June 24, 2008 for tinnitus; a 10 percent disability rating for right knee degenerative joint disease; zero percent disability from August 20, 1988 for bilateral hearing loss; zero percent disability from August 20, 1988 for right inguinal hernia; zero percent disability from November 16, 2010 for erectile dysfunction; zero percent disability from March 29, 2019 for limitation of flexion of the right knee; and a zero percent disability from March 29, 2019. His total combined ratings are 10 percent from August 20, 1988, 20 percent from August 17, 2000, 30 percent from July 17, 2007, 40 percent from June 24, 2008, 50 percent from October 20, 2010, and 60 percent from March 29, 2019. At no point during the period on appeal did the Veteran meet the minimal schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). However, a total rating on an extraschedular basis, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Thus, consideration of whether the Veteran is, in fact, unemployable due to service-connected disabilities, is necessary in this case. The Veteran has already been referred for an extraschedular consideration for a TDIU in September 2015. The Director of Compensation Service opined that TDIU on an extraschedular basis was not warranted since the medical evidence for his service connected disabilities did not show that the Veteran would be unemployable in all environments, including a sedentary one, due solely to his service-connected disabilities. However, since then the Veteran has received an increase in disability ratings and therefore, the Board will conduct an analysis of whether the Veteran’s claim for TDIU should be referred for an extraschedular consideration again. Upon review of all of the evidence of record, both lay and medical, the Board finds that referral for an extraschedular consideration of a TDIU is not warranted. The Board has acknowledged and considered the Veteran’s and his wife’s lay statements addressing his employability. The Board notes that the Veteran and his wife are competent and credible to report the subjective symptoms and functional limitations the Veteran experienced regarding his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, the Board emphasizes that the Veteran’s and his wife’s descriptions of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. The evidence reflects that the Veteran completed high school and no other education or training. His occupations consisted of correctional officer from August 2004 to August 200 and janitor from April 1993 to August 2004. In the September 2008 application for TDIU, the Veteran reported that his ankle injury, severe knee disability, and hearing loss prevented him from securing or following any substantially gainful occupation. He reported that he could not work because of his lower back and that standing, walking or sitting for long periods caused severe back, right hip, and leg pain. The Veteran reported leaving his last job due to his disability. In an August 2008 statement, the Veteran reported that many of his disabilities are preventing him from working. He attributed his PTSD, depression, diabetes, back pain, hip pain, knee pain to causing his inability to even do simple tasks. In the August 2009 VA examination, the Veteran reported that he was unemployed. He claimed that he retired due to his low back disability. He explained that his right ankle injury had no effect on usual daily activities and there were no limitations except for walking on uneven terrain. The Veteran had few limitations due to his right knee and low back disabilities, but was found to largely be able to function in a sedentary environment. The November 2010 VA examination reported that the Veteran’s back disability is moderate to moderately severe. The examiner reported that he has very limited ambulation and appears to be in severe pain. The examiner noted that the Veteran is retired from his previous occupation. Social Security Administration (SSA) records uploaded to the claims file in October 2014 reflected that the Veteran suffered from multiple disabilities, to include service-connected lumbar spine disability and right knee degenerative disease, but also nonservice-connected left knee disability, a mental disorder, and diabetes. SSA determined the Veteran to be disabled effective August 15, 2007 and indicated that this was primarily due to osteoarthritis and the lumbar spine disability. The April 2015 VA psychiatric examination reported that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The April 2015 Eye examination reported that the Veteran’s eye disability did not impact his ability to work. The April 2015 hearing examination reported that the Veteran’s hearing loss does impact ordinary conditions of daily life, including the ability to work. The Veteran reported that he sometimes cannot hear his wife telling him to turn down the television when she is at the other end of the house. The September 2015 letter by the Director of Compensation Service reported that the Veteran was service connected for right ankle injury, right knee degenerative joint disease, tinnitus, bilateral hearing loss, right inguinal hernia, and erectile dysfunction with a combined disability evaluation of 50 percent. The letter also reported that the Veteran was considered disabled by the SSA due to non-service-connected dysthymic disorder, diabetes, right knee degenerative joint disease, service-connected lumbar spine disability, and a left knee disability. The Director explained that SSA decisions have no bearing on VA decisions. The Director opined that medical evidence for the Veteran’s service-connected disabilities do not show that the Veteran would be unemployable in all environments, including a sedentary one, due solely to his service-connected disabilities. In a September 2015 Request for Employment Information, the Veteran’s last employer, VAMC WACO, reported that the Veteran worked from May 1993 to August 1999 as a housekeeping aid. In reasons for termination, it said that the Veteran resigned. The September 2016 VA psychiatric examination found the Veteran to have total occupational and social impairment. In the March 2017 VA knee examination, the Veteran reported that his knee has gotten worse where it will “pop” sometimes causing him to fall. He also reported walking with a cane. He also reported that it is hard for him to stand and for long periods and cannot go more than a few yards without pain. The examiner reported that the Veteran’s knee disability impacts his ability to perform occupational tasks, such as walking or standing for long periods of time. He also reported that he cannot squat without pain and cannot get up if he squats. In the April 2019 VA back examination, the Veteran reported that the back pain and weakness causes him to have difficulty standing, walking, sitting, or driving long periods. The examiner reported that the functional deficits slow him down and he is less efficient, which decreases his productivity levels. The examiner explained that standing and walking are warranted as a minimal job duty as well as for activities of daily living. The examiner furthered that these functional deficits have considerably affected his productivity and ability to unction at ideal capacity as he is limited to standing and walking 15 minutes or less before he has to rest. In the April 2019 VA ankle and knee examination, the examiner reported that the ankle pain and weakness cause the Veteran to have difficulty walking, standing, climbing, and descending stairs. The examiner furthered that these functional deficits slow him down and that he is less efficient, with decreased productivity levels. The examiner explained that the Veteran uses a cane for ambulation assistance and that it causes him to move slower due to the knee pain and weakness. The examiner opined that in any occupation, standing and walking is warranted as a minimal job requirement. In the September 2019 VA psychiatric examination, the examiner opined that the Veteran had total occupational and social impairment. In a statement received in September 2020, the Veteran’s wife reported that the Veteran had many psychiatric episodes until his death. The Board notes that, 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 because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The Board does not find that the record demonstrates the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. Nor does the evidence show the Veteran’s record places his case in a different category than other Veteran’s with an equal level of disability. While the Veteran has said that he was unable to continue working, these statements must be weighed against the objective medical evidence of record. The Board notes a TDIU rating is not warranted where a veteran is unable to continue a chosen profession but, as already noted, the determinative question for purposes of TDIU is whether the Veteran’s level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Simply stated, while perhaps the Veteran cannot work in his prior job or even in his prior vocation, the question is whether he can, in fact, work. This finding can, unfortunately, not take into consideration the Veteran’s age or his nonservice-connected disabilities. At the outset, the Board acknowledges that the Veteran contends, and the evidence supports, that he has severe occupational impairment. However, the weight of the probative evidence indicates that his functional impairment is due to, not only his service connected back, knee, and ankle disability, but also his nonservice-connected psychiatric disorder. In this regard, the Board notes that the medical evidence of record, including statements from his treating physicians, indicates that the Veteran was unable to work due to a combination of service-connected and nonservice-connected disabilities. For example, the April 2019 VA examiners opined that the Veteran was severely prohibited from walking, standing, or sitting, which would impact any employment. Moreover, SSA found that the Veteran was disabled due to his back disability and for his psychiatric disorder. The Board has considered these opinions; however, notably, the opinion does not indicate that the Veteran was unable to work. Rather the opinions note that the Veteran’s musculoskeletal disabilities merely decreased his efficiency and would cause him to have to rest fairly often, which is contemplated in the schedular rating for the corresponding disabilities. There was no indication that the Veteran would not be able to complete work requiring to sit down and be at a desk. The Board finds these opinions to not be probative evidence that the Veteran was unable to work as a result of his service-connected disabilities. To the extent that the medical evidence of record, including the VA examinations, address functional impairment due to the musculoskeletal disabilities, the Board notes that there is no probative medical opinion of record indicating that the Veteran was unable to work due to solely his service-connected disabilities and the Board does not find that these limitations would prevent all forms of employment. Inn this regard, the Board acknowledges that the Veteran’s musculoskeletal disabilities result in difficulty with prolonged standing, walking, climbing, and squatting. However, the Board finds that these symptoms have been adequately considered under his currently assigned disability ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Although the Board recognizes that the Veteran and his wife believe that his service-connected disabilities have rendered him unable to work, as noted above, the Veteran’s description of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. Here, after considering the evidence of record, both lay and medical, the Board finds that the preponderance of the competent and credible evidence does not reflect that the Veteran is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. The Board is sympathetic to the Veteran’s physical and mental limitations, and acknowledges that the Veteran’s service connected disabilities will cause him problems, and may have caused him not to be able to function in some jobs; however, this fact, in and of itself, does not provide the basis to grant this case. The Board further recognizes that the Veteran believed that his psychiatric disorder should be considered in deciding the current claim; however, the Board must emphasize that the Veteran is not currently service-connected for this disability and nonservice-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. Based on the foregoing, the Board finds that the weight of the probative lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. The Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, as evidenced by his combined disability rating. The weight of the evidence, however, does not support a finding that his service-connected disabilities precluded his participation in substantially gainful employment. As such, the Board finds that referral for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.