Citation Nr: 21012811 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-20 246 DATE: March 5, 2021 ORDER Entitlement to an initial disability rating of 30 percent, and no higher, for other specified depressive disorder with anxious distress (previously rated as specific phobia, situational type) prior to April 9, 2019 is granted. Entitlement to a 50 percent disability rating, and no higher, for other specified depressive disorder with anxious distress from April 9, 2019 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from August 1, 2015 is denied. FINDINGS OF FACT 1. For the period prior to April 9, 2019, the evidence reflects that the Veteran exhibited symptoms of depressive disorder with anxious distress resulting in occupational and social impairment with occasional decrease in work efficiency and inability to perform occupational tasks. 2. Since April 9, 2019 onward, the evidence shows that the Veteran’s depressive disorder with anxious distress is manifested by symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity. 3. For the period from August 1, 2015, the Veteran’s service-connected disabilities, to include his psychiatric disability, have not precluded him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 9, 2019, the criteria for entitlement to an initial disability rating of 30 percent, and no higher, for other specified depressive disorder with anxious distress (previously rated as specific phobia, situational type) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9499-9410 (previously rated as DC 9403). 2. Since April 9, 2019, the criteria for entitlement to a 50 percent disability rating, and no higher, for other specified depressive disorder with anxious distress have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DC 9499-9410. 3. Since August 1, 2015, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from January 1966 to January 1969, to include service in the Republic of Vietnam. The Veteran received several awards and decorations for his service, including the Purple Heart and the Distinguished Flying Cross. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Increased Ratings 1. Entitlement to an initial disability rating of 30 percent, and no higher, for other specified depressive disorder with anxious distress prior to April 9, 2019 is granted. 2. Entitlement to a 50 percent disability rating, and no higher, for other specified depressive disorder with anxious from April 9, 2019 is granted. These ratings are assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Codes 9499-9410, which corresponds to other specified anxiety disorder. Diagnostic Codes 9499-9410 directs that other specified anxiety disorder be rated pursuant to the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a psychiatric condition warrants a 10 percent disability evaluation if it is productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Codes 9499-9410. A 30 percent rating is warranted when there is 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted when there is 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Prior to April 9, 2019 The Veteran’s service-connected psychiatric disorder was initially characterized as specific phobia, situational type and was rated non-compensably disabling, effective August 1, 2015, the date of grant of service connection. The Veteran contends that he is entitled to an initial, compensable, disability rating for his service-connected psychiatric disorder now diagnosed as other depressive disorder with anxious distress. Evidence relevant to the level of severity of the Veteran’s depressive disorder with anxiety includes a VA examination and report, lay statements from the Veteran, as well as a private psychiatric evaluation. Turning to the evidence of record, the Veteran submitted a lay statement in conjunction with his claim for service connection, where he stated that “I have attempted to cope with posttraumatic stress disorder (PTSD) since leaving the service, but my depression and fear of flying has increased over the years.” The Veteran was first afforded a VA examination for his psychiatric disability in September 2015. The VA examiner indicated that the Veteran’s symptoms did not meet the criteria for a DSM-5 diagnosis of PTSD, but that the Veteran otherwise had a diagnosis of specific phobia, situational type. During the examination, the Veteran reported that he has been married for 44 years to his current wife, and that they have two children together. The Veteran stated “I like to spend time with my wife, we have two sets of close friends that we travel with, and we have a motor home so we go around when we can[.] I am a range safety instructor for people applying for gun licenses to hunt, so I do that as a volunteer. I like being around kids and I belong to the [omitted] County 4 H fishing club, and we help kids learn to fish. I do have several brothers, but we don’t really keep in contact.” Regarding occupation, the Veteran stated that following his discharge from the military, he worked as “some odd jobs” but then got a job a [omitted] Telephone Company working as a utility man. The Veteran reported that he worked there for 33 years until his retirement in 2002. The Veteran indicated that he has not received any type of mental health treatment prior to the examination. The Veteran stated that he has “difficulty getting on airplanes” although he has flown, but he now “avoids it,” stating he did not attend a sibling’s funeral due to his fear of flying. The Veteran reported chronic sleep problems, stating “I don’t sleep, I haven’t slept in years.” The Veteran also characterized his typical mood as “sad” and stated that “my wife tells me nothing makes me smile.” The Veteran indicated that since the military, he is “not a big crowd person” and likes to spend time with his wife or a few friends, but not in a big group. The Veteran reported experiencing low energy. The Veteran also indicated that he has been “known for having a short fuse, anything that didn’t go my way and I’d be pissed[,]” when discussing anger and irritability. The Veteran denied suicidal or homicidal ideation. He stated that he had never discussed these feelings with anyone or sought any type of medications to assist with his fear of flying. The VA examiner noted that the Veteran served in the Republic of Vietnam and was involved in combat operations, as well as a helicopter crash. The VA examiner indicated that the Veteran presented with some PTSD diagnostic criteria, including recurrent, involuntary, and intrusive distressing memories of traumatic events he had experienced. Regarding other psychiatric symptoms, the VA examiner noted that the Veteran experienced anxiety. Upon behavioral observation, the VA examiner noted that the Veteran’s eye contact was good, and speech and psychomotor capabilities within normal limits; the VA examiner characterized his mood as euthymic and thought content as normal; the Veteran denied delusions, hallucinations, and appeared to have no problems with attention or concentration, as well as abstract reasoning. Regarding the level of occupational and social impairment the Veteran has as a result of his mental disorder, the VA examiner opined that “[a] mental condition has been formally diagnosed, but symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication.” The Veteran also submitted a medical evaluation from a private psychologist in August 2020. The psychologist provided analysis and opinions regarding the Veteran’s psychiatric condition prior to April 9, 2019 and following April 9, 2019 based on a review of medical records, service records, VA examination reports, and a clinical interview with the Veteran. During the evaluation, the Veteran reported that his ongoing depressive symptoms stemmed from his experiences during his military service. The psychologist indicated that these symptoms include his chronic sleep disturbance, lack of motivation (which was reflected in service by his then “don’t give a crap attitude about everything), irritability and agitation, excessive worry and anxiety, and his feeling of worthlessness. The Veteran stated that “[a]fter Vietnam… they gave everybody 30 days leave, I went home and instead of excitement… everything was dull and mundane, just a sad time.” The psychologist reported that based on the Veteran’s report, it is his opinion that some of the Veteran’s current depressive symptoms began in service, and that he also developed a “prominent depressive condition” with other symptoms such as loss of focus and concentration within 30 days of his military discharge, i.e., prior to April 9, 2019. The psychologist reported that the results of his interview and evaluation of the Veteran shows that the Veteran’s other specified depressive disorder presents at a recurrent and severe level and has remained as this high level of severity “from at least 2015 forward.” Resolving any reasonable doubt in favor of the Veteran, the Board concludes that the weight of the medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates a 30 percent disability rating from August 1, 2015 until April 9, 2019. See 38 C.F.R. § 4.7. In reaching this conclusion, the Board notes that the Veteran's primary symptoms include chronic sleep impairment, depressed mood, and anxiety. During this time period, the Veteran endorsed good relationships with most family members and few close friends, but otherwise isolated himself socially, and withdrew from interactions with others that occurred in a group setting. The evidence of record shows that the Veteran experienced anxiety and worry, especially around flying, as well as persistent low mood and energy, and agitation, consistent with a depressive disorder. Although he did not choose to seek formal mental health treatment, the Veteran reported in his lay statements that he struggled with these symptoms and his mental health since his discharge from the military. As a result, the Board finds that the Veteran's described symptoms more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as described by the 30 percent rating criteria. A rating greater than 30 percent is not appropriate prior to April 9, 2019 because at this time, the Veteran was not experiencing symptoms on par with the level of severity contemplated by the 50 percent rating. For instance, the Veteran did not report experiencing panic attacks more than once a week. Additionally, the Veteran did not experience significant impairment of the short- and long-term memory, or impaired judgment and abstract thinking; there is no medical evidence to support these symptoms or different ones that are of similar severity. While the Veteran expressed feelings of anxiety and depressed mood, the overall, they did not result in difficulty establishing and maintaining effective work and social relationships prior to April 9, 2019. He was social with his wife and two other couples, traveling and volunteering his time in the community. In short, while a higher 30 percent rating is warranted, his symptoms are not on par with the level of severity contemplated by the higher still rating criteria of 50, 70, or 100 percent. The Board has considered the Veteran's lay statements regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that his level of social and occupational impairment does not warrant a rating in excess of a 30 percent rating prior to April 9, 2019. From April 9, 2019 forward The Veteran is currently rated as 30 percent disabling for his service-connected psychiatric disability. He contends he is entitled to a higher rating from April 9, 2019 forward. Evidence relevant to the level of severity of the Veteran’s psychiatric disability for this period on appeal includes a VA examination and report, lay statements from the Veteran, as well as a private psychiatric evaluation. The Veteran was afforded an additional VA examination for mental disorders in May 2019. During the examination, the Veteran reported that he was still married to his wife of 48 years, and that he has had “moods and mood swings” that impact their marriage, stating that it “seems like I get pissed, got a short fuse, and sometimes I take it out on her[.]” The Veteran reported that it “seems the older I get, the worse it gets[.]” The Veteran indicated that he often isolates himself in his room and his wife “is concerned about me being moody,” although the Veteran stated “I don’t like to share stuff with anybody[,] I want to solve my own problems[.]” The Veteran also reported that he is generally “humorless” although he enjoys his hobbies but he is generally “dour.” Some of his hobbies include camping, fishing, and instructing for firearms/archery. The Veteran reported that he has been retired since 2002, but that he enjoyed his job prior to retirement because “you sat in a truck by yourself 99 percent of the time” and because he “didn’t have anybody breathing down [my] neck.” The Veteran reported that following his retirement in 2002, he enjoyed his free time for roughly two weeks before getting another job in a plumbing supply store, but “dealing with the people” led him to quit a month later. The Veteran reported that he still works as a “range safety officer” and instructor and for the Department of Natural Resources “intermittently.” The Veteran denied any problems working any of these jobs, including tardiness, attendance issues, or task completion issues. The Veteran reported that he sought no mental health treatment since his 2015 VA examination. The VA examiner indicated that the Veteran’s primary psychiatric symptoms included depressed mood and chronic sleep impairment. Upon behavioral observation, the VA examiner observed that the Veteran was dressed casually with a neat hair and beard, and neat hygiene. The VA examiner described the Veteran’s attitude as “cooperative” and “open” with his mood dysphoric. The Veteran’s affect was characterized as blunt/irritable. The Veteran reported that once, when he began taking a prescription drug, he experienced brief hallucinations that stopped once he stopped taking the medication and denied any other experienced of auditory or visual hallucinations. The VA examiner stated that the Veteran’s thought process was logical and goal oriented. The Veteran denied suicidal ideation. The VA examiner stated that the Veteran’s attention was “good”, with judgment and insight characterized as “fair to good.” The Veteran reported that he is “chronically irritable” and verbally aggressive with his spouse, as well as easily irritable with others. The Veteran reported his mood generally is “feeling blah, nothing seems to make me feel happy, make me laugh, or cheer me up[.]” The Veteran indicated that he takes little enjoyment in activities and prefers to be on his own. The Veteran also reported that he has experienced more challenges with his concentration and focus, noting that he finds it harder to sit and reads magazines and that he “can’t seem to concentrate enough or have interest enough to pay attention to it[.]” The Veteran also reported that despite his other ongoing health issues, he still manages his family finances, his hygiene, and activities of daily living, sometimes with help of his wife. Regarding occupational and social impairment, the VA examiner stated that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, only during periods of significant stress. The evaluation of the private psychologist from August 2020, mentioned above, also addressed the period on appeal following April 9, 2019. During the evaluation, the Veteran’s wife reported that she has observed that the Veteran has markedly diminished grooming and hygiene, sometimes going multiple days without a shower, before the Veteran’s spouse reminds him. Upon mental status exam, the Veteran was oriented to person, place, and time, and his mood was described by the psychologist as “dysphoric, anxious, and irritable, with slowed cognitive processing, evidenced by slowed verbal responding.” The psychologist indicated that the Veteran’s affect was “flat but appropriate to mood.” The Veteran reported continued disturbance of sleep. The Veteran also described his energy level as “zero” and stated that “I just have a lack of motivation, a lack of energy… I just seem to have a rough time getting off my butt and doing something, ongoing, a hard time.” Regarding focus and concentration, the Veteran reported that he is currently having trouble focusing on tasks and bringing them to completion. The Veteran also reported that he has started “forgetting where I put something, or something like that, in the last five years.” The psychologist noted that the Veteran’s thoughts were generally logical and coherent, and that the Veteran did not endorse any specific instances of hallucination or delusion. The Veteran reported that “I’m not really a social person… I try to avoid crowds, relatives, and want to be alone” and stated that he generally tries to do activities where he is by himself. In applying the rating criteria to the evidence of record and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disorder more nearly approximates the criteria for a 50 percent evaluation from April 9, 2019. During this period of the appeal, the Veteran exhibited symptoms that were more consistent with those characteristics of the criteria for a 50 percent rating, such as flattened affect, impairment of memory, and disturbances of motivation and mood, as well as chronic sleep impairment, depressed mood, and anxiety. Further, he reportedly showed difficulty in establishing and maintaining effective work and social relationships. In this regard, the Veteran reported preferring continual social isolation and doing things on his own. The medical evidence of record also reflects the Veteran experienced impaired impulse control, such as unprovoked irritability, towards his spouse and others. In sum, the Veteran's disability picture more nearly approximates the criteria for a 50 percent rating. In contrast, the evidence does not indicate that the Veteran experiences occupational and social impairment with deficiencies in most areas or total occupational and social impairment (i.e., a 70 or 100 percent rating) such that a disability rating greater than 50 percent is warranted from April 9, 2019. See 38 C.F.R. § 4.130. For example, the Veteran's speech was not impaired other than being slow in August 2020. His thought processes and communication consistently were not impaired. He was fully oriented, groomed, and without delusions or hallucinations on repeated evaluations. He also had no problems maintaining generally positive relationships with his wife of nearly 50 years and some of his family members. In other words, the evidence suggests that the Veteran did not experience symptoms of similar frequency, severity, or duration as the symptomatology required for a 70 or 100 percent rating as a result of his service-connected acquired psychiatric disability at any time during the appeal period. Id. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 50 percent rating from April 9, 2019 for depressive disorder with anxious distress have been met. TDIU 3. Entitlement to a TDIU for the period from August 1, 2015 is denied. The Veteran contends that he is too disabled to obtain and follow a substantially gainful occupation as a result of his service-connected conditions. Although he currently is in receipt of a 100 percent rating for his service-connected prostate cancer, which renders TDIU moot as of January 18, 2018, the period before the Board starts in April 2015. Therefore, the Board analyzes entitlement from that date forward. 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 38C.F.R. §§3.340 (a)(1), 4.15. TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met to be eligible for TDIU. In determining unemployability, consideration should be given to prior education, training, and work experience but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Given the grant of a higher rating for his service-connected psychiatric disability from August 1, 2015 detailed above, the Veteran has met the schedular percentage threshold for a TDIU throughout the appeal period, with a combined 70 percent rating since August 1, 2015. 38C.F.R. §4.16(a). The Veteran has established service connection for prostate cancer status post radiation, rated 40 percent disabling from April 1, 2015 (and 100 percent from January 18, 2018); other specified depressive disorder with anxious distress (previously rated as specific phobia, situational type), now rated 30 percent disabling from August 1, 2015; diabetes mellitus, type II, with erectile dysfunction, rated at 20 percent disabling from January 2005; tinnitus, rated at 10 percent disabling from January 2005; and hearing loss, rated non-compensably disabling. As such, the schedular threshold requirement for establishing entitlement to TDIU has been met. As the Veteran's service-connected disabilities meet the schedular requirement to establish eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a), the next inquiry is whether his service-connected disabilities precluded him from engaging in substantially gainful employment. The record shows that the Veteran completed high school. See April 2019 VA 21-8940. His recent employment included work as a telephone utility repairman from 1969 to 2002. On the 2019 TDIU application (VA Form 21-8940) the Veteran indicated that his service-connected prostate cancer, diabetes mellitus, type II, and mental health condition prevent him from securing or following any substantially gainful occupation. The Veteran indicated that he last worked full-time in February 2008, and that was when he became too disabled to work. The application indicates that the Veteran left his most recent position as a telephone utility repairman for retirement in 2002, not because of his service-connected disabilities. The Veteran reported that he has not tried to obtain employment since he became too disabled to work. The record contains various opinions and evidence for the period on appeal addressing the Veteran’s employability as a result of his service-connected disabilities. As mentioned above, the Veteran had a VA examination for mental disorders in September 2015. During the examination, the Veteran reported that he was currently retired after working as a utility man for 33 years, but he now enjoys traveling with his wife and/or their close friends in their motor home. The Veteran indicated that he was volunteering part-time as a gun range safety instructor, assisting individuals who were applying for hunting licenses. The Veteran also reported that he volunteers with the [omitted] County 4H Fishing Club, where he helps children learn to fish. The Veteran endorsed psychiatric symptoms such as depressed mood, anxiety, social isolation/withdrawal, episodes of anger and irritability. During the examination, the Veteran denied concentration and/or focus problems. The Veteran had multiple VA exams throughout the appeal period for his service-connected prostate cancer. Regarding functional impact of this disability, one VA examiner indicated that the Veteran has various doctor appointments and appointments for treatment that would cause issues with attendance at a job. See e.g., November 2018 VA examination. Moreover, the VA examiners also indicated that the Veteran’s urinary frequency as a result of his prostate cancer would also impact his employment. As evidenced by the VA examination in May 2019, the Veteran was changing urinary pads four to five times per day as a result of leakages and voiding dysfunction, which the VA examiner opined would require him to have frequent access to a restroom. The May 2019 VA examiner also opined that the Veteran’s service-connected diabetes mellitus, type II, would have no functional impact or affect his employment. As mentioned above, the Veteran submitted a private psychological evaluation in August 2020. The psychologist provided analysis and opinions regarding the Veteran’s psychiatric condition prior to April 9, 2019 based on a review of medical records, service records, VA examination reports, and a clinical interview with the Veteran. Regarding employability, the private psychologist opined that the Veteran’s psychiatric symptoms were severe and that “this Veteran’s profound loss of energy, interest, and motivation, his extreme loss of focus and concentration, loss of memory, recurring irritability and extreme social withdrawal and self-isolation would interfere with this Veteran’s ability to work in any public or private setting.” A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Considering this, the Board assigns little probative weight to the opinion regarding the Veteran’s employability by the private psychologist. In the August 2020 private psychologist’s opinion, the psychologist asserts that the Veteran is totally occupationally and socially impaired, which is in direct contrast to the medical evidence of record, including multiple VA examinations. The Veteran suffers from some occupational and social impairment as a result of his service-connected depressive disorder; however, the impairment is not total and complete, as evidenced by the VA examinations and the Veteran’s own reports of record. The Veteran noted that he retired after many years in a career in which he was successful. The Veteran also reported that he currently fills his free time by volunteering with various organizations, fishing, or traveling for camping. This is directly contrary to the picture painted by the private psychologist during his evaluation. Notably, VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board must look to the medical evidence of actual impairment caused by the service-connected disabilities, as opposed to legal conclusions of unemployability drawn by medical professionals. The evidence of record does not support the contention that the Veteran's service-connected conditions alone preclude him from securing or maintaining substantially gainful employment. The evidence of record shows that the Veteran successfully managed a 30-year career with a telephone company following his separation from the military, with little to no difficulty. Further, the Veteran reported that in his retirement, he is currently spending time with his family, and doing activities such as camping and fishing; indicative that he is not suffering from total impairment, and still able to communicate with his family and relatives. As mentioned above, the Veteran has also reported he often volunteers. His symptoms wax and wane, and there have been periods of remission. He is compliant with medications and treatment for his service-connected disabilities. According to both the Veteran and the evidence of record, he left employment due to being of retirement age and not exclusively as a result of his service-connected disabilities. Although the Veteran is recognized as having a significant level of occupational and social impairment due to his service-connected conditions, the Board finds the symptoms did not rise to the level of being unable to secure or follow a substantially gainful occupation. The Board notes that the combined 70 percent rating assigned incorporated the recognition of some occupational impairment, but not total impairment. He has a high school education and a history of a stable career. While he may not be able to function as a utility worker currently, it appears from the record that it is due to his age. For a finding of TDIU, the Board is prohibited from considering such factors. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, entitlement to TDIU is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.