Citation Nr: 21012979 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-21 787 DATE: March 8, 2021 ORDER Entitlement to a rating in excess of 50 percent for generalized anxiety disorder (GAD) for the period prior to November 30, 2020 is denied. Entitlement to a rating in excess of 70 percent for GAD for the period from November 30, 2020 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from November 30, 2020 is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not show that the Veteran’s GAD more nearly approximated occupational and social impairment with deficiencies in most areas at any time during the period prior to November 30, 2020. 2. The preponderance of the evidence does not show that the Veteran’s GAD more nearly approximated total occupational and social impairment at any time during the period from November 30, 2020. 3. The Veteran did not return a completed VA Form 21-8940 to support his claim for TDIU, and the preponderance of the evidence does not show that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 50 percent for GAD for the period prior to November 30, 2020 have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2019). 2. The criteria for an increased rating in excess of 70 percent for GAD for the period from November 30, 2020 have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2019). 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1975 to November 1976. This matter is on appeal from an April 2014 rating decision. In February 2015, the Veteran testified at a Decision Review Officer (DRO) hearing. A transcript from that proceeding is associated with the claims file. Although the Veteran requested a Board videoconference hearing in his May 2015 VA Form 9, the record shows that his representative later withdrew this request in an August 2018 statement. As such, there are no outstanding Board hearing requests. The Board previously remanded this claim in November 2018 and August 2020 for additional development. As the actions specified in the remands have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) During the pendency of the appeal, in a December 2020 rating decision, the Regional Office (RO) assigned the Veteran a 70 percent rating for his GAD, effective November 30, 2020. As this increase is a partial grant of the benefit sought, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 3.321 (a), 4.1. The Veteran’s entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. The Veteran’s GAD is rated under Diagnostic Code 9400. Pursuant to a General Rating Formula for Mental Disorders, specified in 38 C.F.R. § 4.130, a 50 percent rating is appropriate when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400, General Rating Formula for Mental Disorders. The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. See id. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). In other words, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board notes that the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-V), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). 1. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder (GAD) for the period prior to November 30, 2020 The Veteran seeks an increased rating for his service-connected GAD, which is rated 50 percent disabling prior to November 30, 2020. The Veteran contends that he is entitled to a higher rating because his psychiatric symptoms during the relevant period were more severe than contemplated by his currently assigned rating. For the reasons specified below, the Board finds that an increased rating in excess of 50 percent is not warranted for any time during this period on appeal. Turning to the relevant evidence, the Veteran underwent a VA examination for mental disorders in March 2014. The Veteran reported that he is widowed and has no children but was living with his sister and her children. He stated having some problems with his niece and nephew’s spouses. The Veteran described experiencing chronic worry and being easily irritated, but he felt that medication and counseling help manage his symptoms. The Veteran endorsed experiencing anxiety, panic attacks, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining relationships. The VA examiner found the Veteran to be interactive with intelligence, memory, insight and judgment within normal limits. He denied suicidal or homicidal ideations as well as hallucinations. He was deemed capable of managing his own financial affairs. The examiner determined the Veteran’s GAD was moderate, causing occupational and social impairment with reduced reliability and productivity. At a February 2015 hearing before a Decision Review Officer (DRO), the Veteran testified that his one or two panic attacks a week. He reported that his anxiety is brought on by everyday things like driving and bills. He stated that he doesn't like being around a lot people but does have a group of close friends who also have disabilities which makes it easier for them to relate and understand each other. The Veteran also submitted a disability benefits questionnaire (DBQ) completed by a private psychologist, J.A., in February 2015. The Veteran endorsed symptoms of anxiety, panic attacks that occur weekly, circumstantial, circulatory speech, speech that is intermittently logical, obscure or irrelevant, difficulty understanding complex commands, disturbances in motivation and mood, and difficulty in establishing and maintaining relationships. In a February 2015 letter accompanying the DBQ, the private psychologist provided a comprehensive report of the Veteran’s evaluation and his findings. The Veteran reported feelings of agitation and panic attacks once a week that manifest through palpitations, smothering feelings and hyperventilation. He further reported mood swings and a short temper. The Veteran reported feelings of anger and that he has felt like harming others but that he has not ever acted on those feelings. Although he has some episodes where he has a lot of energy which last a couple days about once a month, he described typically being fatigued because of a disturbed sleep pattern which he blamed on his HIV medication. The Veteran stated that when he has feelings of restlessness and wants to get out of the house, he will go visit relatives or acquaintances during the day. The private examiner observed the Veteran does not meet criteria for mania or hypomania. The Veteran denied obsessions, compulsions, and paranoia but does ruminate on his worries and strongly distrusts and dislikes others. Upon mental status examination, the private psychologist stated the Veteran’s speech, concentration, attention span, memory psychomotor activity, affect and intelligence were within normal limits and that he was oriented to time, place and person. capable of managing financial affairs. The private psychologist characterized the Veteran’s GAD as causing occupational and social impairment with deficiencies in most areas. The Veteran underwent another VA examination for mental disorders in November 2019. A diagnosis of GAD was confirmed by the examining VA psychologist. The Veteran reported being in a significant relationship for about a year and that he and his girlfriend get along well. He lives with and cares for his sister who has lupus with whom he mostly gets along with. His adult niece and nephew are no longer living with them, but his nephew often leaves his 4 young children with the veteran's sister to care for. The veteran indicated that the children annoy/frustrate him. The Veteran denied having any friends or involvement in any groups or clubs nor does he attend church. He explained that he does not go to restaurants but does occasionally go to a local pub where he always sits at a corner table. He enjoys hobbies including fishing, golfing, canning food, and metal detecting. The Veteran reported worries about everything, experiences panic attacks which he describes as feeling jittery, tense, and "hollow", irritability, agitation, decreased concentration and variable motivation depending on the task. He endorsed experiencing depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, circumstantial, circumlocutory or stereotyped speech, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful situations. The VA examiner noted that the Veteran was friendly and cooperative, dressed casually and appropriately for weather mood euthymic and affect full range. The examiner described the Veteran’s speech as tangential but stated that his thought process, memory and attention were within normal limits. The Veteran was deemed capable of managing his financial affairs. He denied suicidal and homicidal ideation. The examiner characterized the Veteran’s GAD as causing occupational and social impairment with reduced reliability and productivity. VA treatment records from June 2013 to November 29, 2020 show that he underwent continuous treatment for GAD throughout the period on appeal, including periodic follow-ups with his VA psychiatrist for medication management and regular mental health assessments related to his treatment for HIV. During the relevant period, the Veteran routinely endorsed anxiety, depression, inability to sleep, irritability, and difficulty in establishing and maintaining effective social relationships. . According to these records, the Veteran has experienced little fluctuation in his psychiatric symptoms and reports that his prescribed medication continues to work effectively for anxiety. The Veteran consistently denied experiencing suicidal or homicidal ideation, hallucinations, delusions, or psychosis. His VA treating psychologists consistently found him to be well groomed, oriented to person, place, and time with logical and appropriate speech, thought process and content, displaying congruent mood and affect. After careful review of the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 50 percent for the period prior to November 30, 2020 for the Veteran's service-connected GAD. The next higher rating of 70 percent requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. However, the evidence of record does not indicate that the Veteran has exhibited, at any time during the period on appeal, symptoms of the type and degree as obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, spatial disorientation, or neglect of personal appearance or hygiene. As such, the Board does not find that a higher disability rating of 70 percent is warranted. In making this determination, the Board recognizes that the private psychologist, J.A., who completed the Veteran’s February 2015 DBQ opined that the Veteran's symptoms result in occupational and social impairment with deficiencies in most areas. In a November 2018 statement, the Veteran’s representative stated that this private assessment proves that his symptoms are more severe than currently contemplated by his 50 percent rating. However, J.A.'s description of the Veteran's symptoms in his letter do not actually support this finding. The Board notes that it must look at the cumulative evidence of record to analyze the severity, frequency, and duration of the signs and symptoms of the Veteran's GAD in order to determine the level of occupational and social impairment caused by those signs and symptoms. See Bankhead, 29 Vet. App. at 22. With this in mind, the Board finds that the Veteran has consistently endorsed symptoms of the type and degree most consistent with occupational and social impairment with reduced reliability and productivity. Further, the Board is cognizant of a March 2020 VA treatment record, when asked if he has suicidal thoughts, Veteran reported "doesn't everybody." The examiner stated that the Veteran shared nihilistic thoughts and a belief that if his health were significantly declining that he would prefer to kill himself rather than live through that decline. The treating physician emphasized that the Veteran denied active thoughts about suicide, plans, or intent to kill himself and that no homicidal intent was reported or expressed. The treating professional determined there was a minimal risk for self-harm or harm to others at the time of reporting. However, aside from this singular notation, the Veteran has consistently denied suicidal ideation, intent, or plan to his VA mental health providers and examiners during the period on appeal. The facts of this case appear to be distinguishable from Bankhead v. Shulkin, in which the United States Court of Appeals for Veterans Claims held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). See Bankhead, 29 Vet. App. at 20. Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Id. at 19-23. This case is distinguishable from Bankhead because, unlike in Bankhead, the singular notation of suicidal ideation during the appeal by itself or when considered with other symptomatology, did not cause the level of occupational and social impairment associated with a 70 percent disability rating. As previously noted, the record does not reflect symptomatology of deficiencies in most areas, particularly, work, judgment, thinking or mood such that his symptoms equate to the severity, frequency and duration of near continuous panic or depression, impaired impulse control, obsessional rituals, or spatial disorientation. Based on the facts of the instant case, the sporadic (and temporary) instance of reported suicidal ideation does not more nearly approximate occupational and social impairment with deficiencies in most areas, but rather reflect a lesser degree of impairment that is contemplated by the currently-assigned 50 percent rating. In reaching the above conclusion, the Board acknowledges that the Veteran sincerely believes his symptoms to be more severe than contemplated by his currently-assigned 50 percent disability rating. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his psychiatric disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Board has considered the Veteran's lay statements of record, the Board has given them appropriate weight where they are consistent with the objective medical evidence of record. The Board must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 50 percent for GAD is warranted for the period prior to November 30, 2020. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 70 percent for generalized anxiety disorder for the period from November 30, 2020 The Veteran seeks an increased rating for his service-connected GAD, which is currently rated 70 percent disabling, effective November 30, 2020. The Veteran contends that he is entitled to a higher rating because his psychiatric symptoms during the relevant period were more severe than contemplated by his currently assigned rating. For the reasons specified below, the Board finds that an increased rating in excess of 70 percent is not warranted for any time for the period from November 30, 2020. The Veteran underwent a VA examination for mental disorders in November 2020 pursuant to a remand by the Board following a report of suicidal ideation during a check in at a VA facility in March 2020. He reported that he continues to live with his sister whom he cares for due to her medical problems and that he has a girlfriend of about two years – he stated that sometimes this relationship is tense. If his nephew's children are dropped off with his sister, he must leave because he finds it aggravating. He has a few friends he enjoys, is well-known in the community, donates to veteran causes, and when physically able enjoys hobbies such as golf, fishing, metal detecting and "magnet fishing" for underwater items. The Veteran stated that he is easily irritated, tense and that he has been crying more often. He further described that has insomnia and frequently wakes during the night, informing the examiner that he was recently diagnosed with restless leg syndrome. He reported that he remains interested in hobbies and activities, but they are often limited due to precautions of the COVID pandemic. He has limited physical ability and low motivation. He is highly anxious about many aspects of his future and has panic attacks that manifest through flushing, increased heart rate, shortness of breath, and light-headedness two to three times a week. He has passive thoughts it would be easier if he wasn't here but no intent or plan. He stated that his anxiety had worsened since his last VA examination because he is now suffering from "night terrors" where he thrashes during dreams and knocks things off of his bedside table. The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbances in mood or motivation, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances. The VA examiner observed that the Veteran arrived on time was appropriately dressed and cooperative despite being frustrated due to miscommunication regarding logistics of his appointment. He maintained minimal eye contact. The examiner further observed that the Veteran’s speech, psychomotor activity, concentration, and memory were within normal limits. His mood was irritable, and his affect was tense and blunted. She described his thought process as tangential but stated that his judgement, insight, and impulse control were good. He denied hallucinations. The VA examiner characterized the Veteran’s GAD as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner explained that she did not perform a check for the suicidal Ideation criteria because the Veteran had not recently considered killing himself but had reported he has thought he would be better off if he wasn't alive. She stated that the Veteran was quick to note that he has religious beliefs and family obligations that keep him for thinking more in-depth than a passive thought he would be better off if he wasn't here. She explained that that the Veteran’s suicidal ideations are fleeting and intermittent so his answer would change due to the fluid nature of his frustration with his life and therefore two clinicians could reasonably have noted different responses. During the appeal period, the evidence of record shows that the Veteran's GAD has manifested primarily by symptoms such as depressed mood, anxiety, frequent panic attacks, irritability, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. The Board finds that such symptomatology is, at most, consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that the next higher rating of 100 percent requires total occupational and social impairment. However, the evidence of record does not indicate that the Veteran has exhibited at any time during the relevant period symptoms of the type and degree required for a total, 100 percent rating. These include: 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, or more severe symptomatology such as to warrant a finding of total occupational and social impairment. See Bowling v. Principi, 15 Vet. App. 1 (2001); Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Finally, the Board does not dispute that the Veteran's GAD causes him significant distress and impairment in social, occupational, or other important areas of functioning. However, the Veteran is compensated for this impairment with a 70 percent disability rating. The Board must assign a rating based on a cumulative review of the medical and lay evidence of record, which, in this case, does not show a disability picture that more nearly approximates total occupational and social impairment. Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 70 percent for the Veteran's GAD is warranted at any time since November 30, 2020, or at any period during the appeal. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (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. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, when the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). Such cases are referred to the Director of Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the Veteran’s ability to obtain and maintain employment. The Veteran is currently service-connected for generalized anxiety disorder (rated 50 percent disabling, prior to November 30, 2020, and 70 percent from November 30, 2020); residuals of a right little finger dislocation (rated 10 percent disabling); degenerative arthritis of bilateral feet (rated 10 percent disabling); and hypertension (rated 0 percent disabling). The Veteran’s combined disability rating is 60 percent from March 1, 2013, and 80 percent from November 30, 2020. See 38 C.F.R. § 4.25, Combined Ratings Table. For the period prior to November 30, 2020, the Veteran does not meet the schedular criteria for a TDIU. Accordingly, a TDIU cannot granted under the scheduler provisions of 38 C.F.R. § 4.16 (a) prior to November 30, 2020. TDIU may be granted on an extra-schedular basis where a veteran who fails to meet the scheduler percentage requirements but is nonetheless unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board cannot assign an extra-schedular rating in the first instance, Bowling v. Principi, 15 Vet. App. 1, 10 (2001). However, "rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities." 38 C.F.R. § 4.16 (b). Consideration may be given to a Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341 , 4.16, 4.19. The Board is tasked with making the threshold determination that referral to the Director for extra-schedular consideration is appropriate. Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, the question before the Board is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment consistent with his educational and occupational background. The Court has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his or her educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a). In August 2020, the Board remanded this matter for evidentiary development, including to provide the Veteran with proper notice regarding how to substantiate his claim for a TDIU and to request that he complete VA Form 21-8940 Application for Increased Compensation Based on Unemployability. In September 2020, the Regional Office (RO) sent the Veteran a letter notifying him of the evidence needed to establish a TDIU and requesting that he complete VA Form 21-8940. The Veteran did not respond. Pursuant to the Board remand directives, the RO also associated VA treatment records with the claims file. The Board has reviewed those records in relation to this claim. The Veteran’s increased rating claim for his generalized anxiety disorder was filed in March 2013, and because this TDIU claim is part of that rating, the Board has reviewed the file for evidence of unemployability during the pendency of the increased rating claim. The evidence of record indicates that the Veteran has a 9th grade education and that he quit school with below average marks. After leaving school, he started on a GED but did not finish though he did complete some vocational courses in carpentry. At his March 2014 VA examination for mental disorders, the Veteran reported that he was retired and that had worked in construction for 25 years, was a janitor, and worked at Nissan but now he is on disability from the Social Security Administration (SSA) secondary to HIV. During the examination for his private mental disorder DBQ, he told the examiner that his last job was in construction, a position he left in 2009 due to “HIV and hips”. He admitted to interpersonal problems on the job but said he never left a job due to anxiety. He reported that he would get frustrated if someone got promoted, but that was “envy, not anxiety”. At his November 2020 VA examination for mental disorders, the examiner reported being retired because he was physically unable to continue with the physical work of construction. He stated that he still has a desire to do projects but is physically limited after two hip surgeries as well as hand, wrist, and knee issues. The Veteran’s VA treatment records were also reviewed. The Board notes that the Veteran’s treating clinicians do not suggest he is unemployable at any time. Although the Veteran has been found totally disabled by the Social Security Administration (SSA), this was primarily due to nonservice-connected disabilities. In sum, the medical evidence of record does not suggest that the Veteran is unemployable due to his service-connected disabilities. Further, the Veteran did not respond to requests from VA to provide further information needed to substantiate his claim for a TDIU. In making this determination, the Board acknowledges the statement of the Veteran’s representative highlighting the letter from a private psychiatrist, in the February 2015 assessment, stating the Veteran’s belief that “his prospects for meaningful employment on a sustained basis are felt to be nil.” The Board acknowledges that the Veteran’s service-connected disabilities certainly cause him some level of functional impairment. For instance, his symptoms of generalized anxiety disorder, which includes chronic sleep impairment, disturbances of motivation and mood, and social deficits, would likely impact his ability to function in a workplace due to decreased concentration and efficiency or ability to handle stressful situations. Moreover, his bilateral arthritis of the feet would prevent him from engaging in employment that required heavy lifting, prolonged standing or walking. Though the Board finds that the evidence does not support a finding that the Veteran’s service-connected disabilities cause a significantly diminished level of functioning to the point where the Veteran is unable to secure and follow all substantially gainful occupations. Moreover, there is nothing in the Veteran’s medical records to suggest that his service-connected disabilities cause such an exceptional or unusual disability picture so as to place him in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran’s claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for his disabilities compensate the Veteran for such impairment. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.