Citation Nr: 21026857 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-29 100 DATE: May 4, 2021 ORDER 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 5, 2019, is denied. 2. Entitlement to an increased rating of 50 percent, but not higher, for PTSD from December 5, 2019 is granted. 3. Entitlement to referral for extraschedular consideration for a total disability rating for compensation due to individual unemployability (TDIU) prior to June 29, 2018 is denied. 4. Entitlement to a TDIU rating from June 29, 2018 is denied. FINDINGS OF FACT 1. Prior to December 5, 2019, PTSD was not manifested by occupational and social impairment with reduced reliability and productivity prior to December 5, 2019. 2. From December 5, 2019, PTSD has been manifested by occupational and social impairment with reduced reliability and productivity but has not been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 3. The preponderance of the evidence is against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 30 percent for PTSD were not met prior to December 5, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.125, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an increased disability rating in excess of 50 percent for PTSD from December 5, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.125, 4.130, DC 9411. 3. The criteria for referral for an extraschedular TDIU rating were not met prior to June 29, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). 4. The criteria for entitlement to a TDIU rating have not been met from June 29, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1970. The case is on appeal from a rating decision issued in October 2014, which granted service connection for PTSD and assigned a rating of 10 percent effective June 3, 2013. In a rating decision dated in May 2016, the RO increased the rating from 10 percent to 30 percent effective June 3, 2013. A review of the record shows that the Veteran has stated that his combined disabilities prevent him from being employed. As such, a claim for TDIU was added, subject to Rice v. Shinseki, 22 Vet. App. 447 (2009), which states that, whether expressly raised by a Veteran or reasonably raised by the record, a TDIU claim is part of the adjudication of a claim for increased compensation. The matters were remanded for additional development and a new VA examination in a July 2019 Board of Veterans' Appeals (Board) decision. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has reported that he suffers a range of symptoms resulting from PTSD, including intrusive thoughts, depressed mood, anxiety, hypervigilance, anger and irritability, social withdrawal, nightmares, flashbacks, and insomnia. As stated, he has alleged that his combined service-connected impairments render him unemployable. Increased Ratings VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service-connected PTSD has been evaluated under 38 C.F.R. § 4.130 using the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411. The General Rating Formula is as follows: A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (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. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they 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 level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a veteran's disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the Veteran's symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an initial evaluation in excess of 30 percent for PTSD prior to December 5, 2019, and that the evidence supports an increased rating of 50 percent, but not higher, for PTSD effective December 5, 2019. The reasons follow. Prior to December 5, 2019 Prior to December 2019, the Veteran's PTSD was not manifested by occupational and social impairment with reduced reliability and productivity. The record indicates that the Veteran was incarcerated from approximately 2004 to 2011. In 2012, the Veteran reported that, since his release, he had been unable to work due to physical limitations with his shoulder. However, the Veteran stated that he was working with his parole officer to establish a lawn care business and that he was working odd jobs throughout his neighborhood. The Veteran reported some depressive symptoms but indicated that his coping strategies included scripture and religious fulfillment, visiting his grandchildren, and socializing with relatives. He expressed an interest in alternate stress management techniques, and in attending group therapy. He began group counseling the following month and reported a positive response to new coping techniques. During an individual therapy session in October 2012, the Veteran recorded normal findings on mental status examination. The Veteran was neatly and cleanly dressed and demonstrated good personal hygiene and the ability to complete activities of daily living. The Veteran presented as alert and cooperative. His mood was pleasant and his though processes and content were within normal limits. No evidence of delusions or hallucinations were present. The Veteran denied any current suicidal ideation. Furthermore, the Veteran presented no evidence of gross memory loss or impairment. In a function report submitted by the Veteran to the Social Security Administration (SSA) in early 2013, he documented that he had no problem getting along with family, friends, or neighbors; that he gets along fine with authority figures; and that he has no history of job loss due to difficulty getting along with others. An SSA assessment from March 2013 indicated that the Veteran attended church and has noticed a major improvement in socialization with medication and group counseling sessions. Treatment records from April 2013 show that the Veteran exhibited appropriate behavior, apparent comprehension, and coherent answers. His memory, attention, concentration, and executive functions appeared intact. The Veteran's psychiatric condition was noted not to cause any impediment to his activities of daily living. The Veteran underwent a VA examination for assessment of his psychiatric disabilities later in the same month. He was not found to have a diagnosis of PTSD but was assessed with psychotic disorder, not otherwise specified; dysthymic disorder; alcohol abuse; cocaine abuse; and personality disorder, not otherwise specified. The Veteran reported symptoms of mood swings, depression, and social isolation. He reported that he had been sober from alcohol and drugs since 2004. He stated that he had been married for ten years, but attributed problems in his marriage to his sex life. The Veteran had a moderately dysphoric mood and blunted affect but otherwise recorded normal findings on mental status examination, including unremarkable thought content; no perceptual abnormalities; intact concentration, attention, and memory; normal judgment; appropriate social interaction; and no suicidal ideation. The examiner stated that the Veteran's mental disorder was best summarized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. This assessment matches the description for a 30 percent disability rating. A June 2014 statement from the Veteran's therapist indicated the Veteran to experience intrusive thoughts, anxiety, hypervigilance, nightmares, anger, and irritability that impacted his ability to function in some social settings. During examination the following month, the Veteran was noted to have appropriate behavior and intact memory, attention, concentration, and executive functions. The Veteran underwent an additional VA examination in September 2014. The Veteran reported a history of suicidal and homicidal ideation without current intent, heightened startle response, anxiety, social difficulties, and anger. Only when repeatedly prompted did the Veteran endorse nightmares or intrusive thoughts. The examiner wrote that the examination was indicative of symptom exaggeration. Despite being anxious, the Veteran was polite, cooperative, and articulate with intact cognitive functioning. The examiner stated that the Veteran's history of criminal and drug activity was not caused or related to his military service. The Veteran was assessed with PTSD, which was described as mild, and antisocial personality disorder. The examiner stated that the Veteran's combined mental diagnoses resulted in occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. This assessment is commensurate with the criteria for a 10 percent disability rating. During VA treatment in January 2015, a mental status examination revealed the Veteran to be alert and oriented, pleasant, and polite. He reported a "grumpy" mood and recorded poor insight, but otherwise was found to have a logical and goal-directed thought process; no evidence of thought disorder or perceptual disturbance; no suicidal or homicidal ideation; intact cognition and memory; and adequate judgment and impulse control. Similar findings became common during the relevant period. The Veteran was indicated to have no history of panic attacks. Similar findings on mental status examination, with some mood fluctuations to include depressive and anxious symptoms, were noted in medical records from April 2015, December 2015, September 2016, August 2017, December 2018, April 2019, May 2019, and July 2019. In a statement submitted to VA in June 2016 stating that he meets the criteria for a 50 percent rating, the Veteran reported continued social isolation, experiencing multiple panic attacks per week, angry outbursts, interpersonal conflict with family members, and paranoia. However, the Veteran's allegations are not fully consistent with his treatment records, which have largely noted relatively normal findings on recurrent mental status examination except for some depressive/anxious symptoms, limited insight, and sleep disturbances. Such findings routinely document the Veteran to be pleasant and cooperative with intact cognitive functioning and impulse control. He has also reported enjoying spending time with family and indicated that doing so is good for him mentally. Additionally, prior records do not document that the Veteran had reported recurrent panic attacks. Subsequent records also do not document the Veteran to report this to be a recurring symptom thereafter. While the Veteran is competent to report his observed symptoms, he has been documented by a medical professional to exaggerate his symptomology on examination. His reports on examination have generally been more severe than what he has reported during routine mental health treatment. The Veteran's reports of his symptoms within medical treatment records are highly probative, as he made these statements while seeking medical treatment, which statements tend to be exceptionally trustworthy. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, the Veteran's functioning as noted in the treatment records and on examination have been assessed by medical professionals with expertise on the subject matter at hand. For these reasons, findings noted in treatment records and on VA examination are found to be more probative than the lay statements of the Veteran. In February 2018, the Veteran's PTSD symptoms were described as mild and unchanged. The Veteran reported that his mood was improved recently and that he was not having nightmares. The Veteran continued to report sleep disturbances, but the Veteran's nonservice-connected COPD was noted to be a factor. The Veteran was hospitalized for three days in November 2019 with an altered state of consciousness due to suspected narcotic overdose. Naloxone was administered and the Veteran recovered. He denied recreational drug use and reported that he only had over-the-counter pain medication. A drug screening was negative. The following day, the Veteran was noted to be alert and oriented, to have a normal mood and affect, and to interact appropriately. He reported no complaints except for back pain and was moved out of critical care for observation before discharge. The Board notes this to be an isolated incident, not indicative of the Veteran's functioning over the relevant period. A subsequent overdose report indicated the incident to be an accidental, non-suicidal overdose of prescribed oxycodone. The Veteran soon regained normal cognitive functioning and was released under his own recognizance. The Veteran has not required inpatient or emergency mental health treatment. Rather, the Veteran's primary symptoms noted in the longitudinal record are sleep disturbances and low mood fluctuations with depression, anxiety, and irritability, which are symptoms commensurate with and adequately compensated by the Veteran's 30 percent disability rating prior to December 5, 2019. The Veteran has also been noted to have limited insight, which may intermittently impact his ability to perform occupational tasks; however, the Veteran has generally functioned satisfactorily, with appropriate routine behavior, independence in self-care, and the ability to socialize effectively with others. The preponderance of the evidence is against a finding that the Veteran's symptoms rise to the level of severity of the 50 percent disability rating, to include such level of symptoms being sustained for significant periods. Notably the Veteran was regularly found to be alert and oriented with intact cognitive functioning, including a logical and goal-oriented thought process; intact memory and attention; no perceptual abnormalities; and adequate judgment and impulse control. These findings are not indicative of circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; and impaired memory, judgment, or abstract thinking. As stated, the treatment records do not document the Veteran experiencing panic attacks anywhere near more than once per week. Additionally, the Veteran has repeatedly been described as cooperative, pleasant, and polite with normal speech, despite his reports of irritability and grumpiness. The Veteran has reported attending church, enjoying visiting family, maintaining his marriage of nearly two decades, experiencing improved socialization with group counseling, and performing yardwork and odd jobs in his community. Such findings weigh against the Veteran's condition being characterized by significant disturbances of motivation and mood or difficulty in establishing and maintaining effective work and social relationships. As such, prior to December 5, 2019, the preponderance of the evidence is against the award of an initial increased rating in excess of 30 percent for PTSD. From December 5, 2019 Following the July 2019 Board remand, the Veteran underwent a VA psychological examination for assessment of his PTSD on December 5, 2019. The Veteran complained of nightmares, nocturnal agitation, exaggerated startle, hypervigilance, irritability and anger, anxiety outside of his home, and avoidance behavior. The examiner wrote that PTSD is marked by hyperarousal and multiple avoidance behaviors and that this is likely to result in deficient social functioning and diminished behavioral efficiency. The Veteran reported that he gets along with his children and has an adequate relationship with his wife. The Veteran was described as cooperative with appropriate behavior. He exhibited a restricted affect and guarded demeanor. The examiner stated that the Veteran's condition was best summarized by occupational and social impairment with reduced reliability and productivity, which is the rating criteria for a 50 percent disability rating. Later that month, the Veteran exhibited normal psychiatric functioning during treatment for a separate issue. He was noted to be alert and oriented and denied suicidal ideation. He reported some continued symptoms of anxiety and depression in February 2020. During treatment in April 2020, the Veteran recorded findings on mental status examination consistent with those noted previously throughout the relevant period. The Veteran's mood was euthymic. His speech was normal in tone, rate, volume, and reflective of logical, goal-directed thought process. No thought disorder or delusions were evident and the Veteran did not endorse perceptual disturbances. The Veteran denied suicidal or homicidal ideations. Despite some limited insight, his judgment was unimpaired. Since his December 2019 examination, the record reflects stable functioning without significant exacerbations of his condition requiring inpatient or urgent treatment. Based on the findings of the December 2019 VA examiner, the Board finds that an increased rating of 50 percent is warranted as of the date of examination. However, the preponderance of the evidence is against a rating in excess of 50 percent. The criteria for a 70 percent rating are not indicated in the Veteran's treatment records during the relevant time frame. The evidence does not indicate the Veteran to experience suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Rather, the Veteran was noted to be grossly cognitively intact with normal speech, a logical, goal-directed thought process, no suicidal ideation, and no perceptual disturbances. The Veteran was cooperative with appropriate behavior and noted good familial relationships, which is evidence against deficiencies in family relationships and the inability to establish and maintain effective relationships. The Veteran has not been found to exhibit panic symptoms. He has not required inpatient or urgent mental health treatment. Such findings do not demonstrate occupational and social impairment with deficiencies in most areas. Accordingly, the Veteran's condition is appropriately considered by his current 50 percent disability rating. The Board acknowledges that the record documents that the Veteran has expressed passive suicidal ideation during the appeals period. Notably the Veteran reported passive suicidal ideation, as well as a remote history of suicidal ideation during VA examination in September 2014. However, the facts of this case are distinguishable from those described in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), in which the United States Court of Appeals for Veterans Claims (Court) 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). Under the 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. Here, the Veteran's reports of passive suicidal ideation do not cause the level of occupational and social impairment contemplated by the 50 or 70 percent disability ratings. In this instance, the Veteran only expressed suicidal ideation on one occasion, without plan or intent. He denied suicidal ideation on many examinations occurring both before and after the September 2014 exam. Some examples of these denials can be found in records from April 2013, December 2013, January 2015, April 2015, December 2015, September 2016, July 2017, December 2018, April 2019, May 2019, July 2019, November 2019, December 2019, and April 2020. This isolated report of suicidal ideation has not been indicated to cause the Veteran functional deficiencies in most areas. The September 2014 psychological examiner indicated the Veteran's examination to be indicative of symptoms exaggeration, found the Veteran to have only mild PTSD symptoms, and assessed the Veteran with occupational and social impairment commensurate with a 10 percent disability rating. VA examiners have routinely noted that the Veteran presents a low risk of harm. The Board again notes that the Veteran's 2019 hospitalization for accidental overdose was determined to be non-suicidal in nature in a subsequent report. The Veteran's overall disability picture does not rise to the level of deficiencies in most areas during this part of the appeal period. The preponderance of the evidence is also against a finding that the Veteran's PTSD symptoms are manifested by total occupational and social impairment. The evidence shows that the Veteran has maintained his marriage of nearly two decades and has good relationships with his children, which is affirmative evidence against a finding of total social impairment. Both total occupational and social impairment must exist for entitlement to a 100 percent rating. For all the reasons stated herein, the evidence supports the Veteran's claim for increased rating, which is granted with a 50 percent evaluation effective December 5, 2019, but the preponderance of the evidence is against an evaluation in excess of 50 percent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to June 29, 2018. The Veteran is service-connected for PTSD (30 percent disability rating from June 3, 2013, and a 50 percent disability rating from December 5, 2019); diabetes mellitus type II with erectile dysfunction (20 percent disability rating from January 26, 2012); tinnitus (10 percent disability rating from January 26, 2012); sciatic peripheral neuropathy associated with diabetes mellitus in the bilateral lower extremities (separate 10 percent disability ratings for each lower extremity from June 29, 2018); and femoral peripheral neuropathy associated with diabetes mellitus in the bilateral lower extremities (separate 10 percent disability ratings in each of the lower extremities from June 29, 2018). The Veteran also has a noncompensable disability rating for right ear hearing loss (0 percent disability rating from January 26, 2012). Thus, the Veteran has had a combined disability rating of 30 percent from January 26, 2012; 50 percent from June 3, 2013; 70 percent from June 29, 2018; and 80 percent from December 5, 2019. It is noted that the Veteran's medical history contains treatment for multiple nonservice-connected disabilities, including a left shoulder disability, COPD, glaucoma, a heart condition, arthralgias, a history of facial injury, cervicalgia, and low back pain, which cannot be considered for purposes of TDIU. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis 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). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration prior to June 29, 2018. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Initially, the Board notes that the Veteran received a SSA disability determination dated in March 2013, which found that he is disabled and unable to sustain full-time employment due to his combined impairments effective in January 2013. It is noted that such a finding is not binding on any determinations made by the VA. VA and SSA use different definitions and standards for determining disability and SSA also considers limitations from all disabilities, versus considering disabilities that are related to service or a service-connected disability. In this instance, the SSA determination specifically indicates that the Veteran's disability determination was based on a primary diagnosis of degenerative joint disease, for which the Veteran is not service-connected. A review of SSA records shows that the Veteran, in his own submissions, largely attributed his overall disability to a shoulder injury for which he is not service-connected. Accordingly, while SSA records are considered within the totality of the evidence, any SSA disability determination has no bearing on any finding made herein. For purposes of TDIU consideration, the above analysis of the Veteran's increased rating claim for PTSD is incorporated herein. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that a TDIU rating or referral for extraschedular consideration of a TDIU rating is warranted. The reasons follow. The Veteran underwent a VA examination for his hearing disabilities in July 2014. The examiner indicated that the Veteran's tinnitus does not impact his ability to work. As to his right ear hearing loss, the Veteran reported trouble understanding conversation on the right side. However, the Veteran has demonstrated the ability to hear and communicate effectively during medical appointments throughout the relevant period and his treatment records indicate the use of a hearing aid. He has not required recurrent treatment for these issues and is not noted to have communicative deficits or limitations in his regular activities relating to tinnitus or right-sided hearing loss. As to the Veteran's diabetes, the Veteran is non-insulin dependent and has primarily managed his treatment with a restricted diet and an oral hypoglycemic agent. His hemoglobin A1c records during the relevant period have primarily been between 5.7 and 6.2 percent, which demonstrates good blood sugar control. A January 2013 VA examination report relating to the Veteran's diabetes indicated that the disability had no impact on the Veteran's ability to work. In July 2013, the Veteran recorded a normal gait and station. He stood without difficulty and had normal sensation and motor activity in his extremities. The Veteran underwent another VA examination for his diabetes in July 2014. The Veteran reported that he walked two miles per day for exercise. He was noted not to have to restrict his activities due to diabetes. He had no hospitalizations or complications from diabetes. The examiner indicated that the Veteran's diabetes was stable and well-controlled and did not impact his ability to work. Treatment records in September 2014 indicated the Veteran to have no sensory deficits. In November 2017, the Veteran was noted to ambulate independently without the use of an assistive device. The Veteran underwent a VA examination of the lower extremities for peripheral neuropathy in August 2018. He reported worsened and ongoing numbness, tingling, and burning in the first and second toes on his bilateral feet and was noted to walk with a cane. The examination indicated that the Veteran's diabetic peripheral neuropathy does not impact his ability to work. In treatment notes from November 2018, the Veteran was noted to not use an assistive device and to have a steady gait. He was found to have normal reflexes and no motor or sensory deficits. The Veteran underwent a VA examination of his diabetes and peripheral nerve conditions in January 2019. The Veteran's diabetes continued to be adequately controlled and his hemoglobin A1c was measured at 6.0 percent. The examiner indicated diabetes to cause only mild functional impact with no impact on the Veteran's ability to work. The Veteran recorded mild incomplete paralysis bilaterally of the sciatic nerve. He had some decreased sensation in his feet and used a cane due to fear of his left knee giving out. The Veteran reported near constant tingling/numbness to his feet with occasional episodes of radicular pain down his bilateral lower extremities. The Board notes that it is not apparent that the Veteran's cane use related entirely to any single service-connected condition and the Veteran has a remote history of arthralgia of the knee dating to 2012, for which he is not service-connected. Additionally, the Veteran is not service-connected for radiculopathy. However, the Board acknowledges the Veteran's neuropathy conditions as a contributing factor. The Veteran stated that his main problem was recurrent cramping in his toes that causes pain. He reported that the cramping is often random but sometimes it is apparent whenever he wiggles his toes. He stated that he generally has to stump his feet several times before the cramping subsides. The Veteran also stated that he was being treated with Neurontin for his nerve pain and admitted to good results. At presentation, the Veteran was asymptomatic. There were no objective findings in the Veteran's medical record indicating any specific evaluation for significant aggravation or worsening of his bilateral lower extremity peripheral neuropathy since his last examination. During subsequent evaluations since his prior VA examination, it was generally noted that the Veteran's neurological examinations were unremarkable and that he either reported no radicular symptoms or no new neurological symptoms. The examiner indicated this to be shown under the review of systems and following the physical/neurological examination as noted during treatment in August 2014, September 2014, November 2015, February 2016, May 2016, August 2016, March 2017, July 2017, January 2018, and November 2018. The Veteran recorded normal strength with no muscle atrophy. The examiner stated that the Veteran's neuropathy causes only mild functional limitations and does not impact his ability to work. The Board notes that the following month, the Veteran was treated for a fall and was noted to ambulate without difficulty, without the use of an assistive device. In May 2019, the Veteran presented with some gait difficulties and mild swelling in the feet; however, he was not reported to require an assistive device for ambulation. The following month the Veteran recorded normal foot and ankle range of motion with full strength despite some diminished sensation. The Veteran was referred for a prosthetics consult for the use of a cane in July 2019. He was noted to have a weakened gait due to pain. He was generally found to have a steady gait thereafter, at times with and without a cane. In 2019, the Veteran was also prescribed orthopedic footwear for his neuropathic symptoms. VA examinations relating to the Veteran's erectile dysfunction associated with diabetes mellitus have indicated no impact on the Veteran's ability to work. The preponderance of the evidence is against a finding that the Veteran is precluded from substantially gainful employment due to service-connected disabilities. The Veteran has demonstrated intact cognitive functioning and the ability to interact appropriately throughout the relevant period. He stated that he experienced a major improvement in his socialization from attending group counseling sessions in 2013. He has performed odd-jobs and lawn care for others in his community and reported good familial relationships and regular church attendance. Physically, the record did not indicate significant limitations due to service-connected disabilities until the onset of neuropathy symptoms around 2018, as evidenced by the Veteran's independence in activities of daily living and his ability to perform yardwork and odd-jobs. In 2013, the Veteran reported that he was unable to work due to his nonservice-connected shoulder disability. The Veteran now uses a single-point cane for ambulation due, in part, to cramping, pain, and decreased sensation in his feet, but he has demonstrated a steady gait at times without the use of a cane. The Veteran's service-connected disabilities have not compromised the use of his upper extremities and he has remained independent in activities of daily living. His diabetes is otherwise well-controlled and managed with diet and oral medication and he has not had issues with hypoglycemic or hyperglycemic events. Regarding the Veteran's education, training, skills, and work history, the Veteran has reported that he has a high school degree but no college education. The Veteran reported that he worked as a cook during his time in the military. He reported that he last worked full-time as a longshoreman for approximately five years prior to his 2004 incarceration. In April 2013, the Veteran reported that, after his release from prison in December 2011, he was unable to work due to his nonservice-connected shoulder disability. However, he also reported doing odd jobs in his community and working to establish a lawn mowing service. Treatment records indicate that the Veteran is receptive to learning. The Veteran's work history and education record demonstrate a capacity for learning and training that do not appear to be hindered by his service-connected disabilities. These attributes would facilitate the Veteran's return to substantially gainful employment in a line of work that the Veteran can perform. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges the Veteran's decreased sensation, tingling, cramping, and pain in his feet associated with neuropathy. The Veteran has maintained independence in activities of daily living and has required only routine treatment without significant exacerbations requiring urgent or inpatient care. He has maintained adequate mobility and a steady gait with the use of a single-point cane, as needed. Service-connected disabilities have not been indicated to compromise the Veteran's use his upper body. As such, it appears that the Veteran's limitations can be appropriately accommodated by restricting the Veteran to occupations that can primarily be performed while sitting, and allows for the use of a single point cane for brief periods of ambulation. As such, the Veteran appears physically capable of performing the requirements of substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences a range of psychiatric symptoms, as discussed above, including sleep disturbances, hyperarousal/paranoia, mood fluctuations with anxiety, depression, irritability, and limited insight. However, the record generally does not show these symptoms cause significant functional limitations that would preclude substantially gainful employment. The Veteran has required only routine, recurrent mental health treatment. Findings on mental status examination generally indicate the Veteran to be fully alert and oriented with intact cognitive functioning, a linear and goal-directed thought process, adequate judgment and impulse control, no perceptual abnormalities, and cooperative, appropriate behavior. The Veteran has routinely demonstrated his ability to socialize appropriately during medical appointments and based on his familial relations, his church attendance, his participation in group therapy, and work in the community. In 2013, he reported improved socialization based on attending group counseling sessions. He has reported no problems getting along with family, friends, neighbors, authority figures, or past coworkers. When asked about what activities impacted his ability to work at the time he filed his SSA disability claim, he checked physical activities, which he wrote would aggravate his shoulder and arm, which, again, is a non-service-connected disability. He did not check memory, completing tasks, concentration, understanding, following instructions, and getting along with others, which were all options, which means he did not feel that any of these activities impacted his ability to work. Based on these findings, it appears that the Veteran's symptoms can be accommodated by restricting the Veteran from positions that involve managerial or supervisory duties, or executive decision-making. Additionally, the Veteran should not work in crowds or positions that require routine, face-to-face interaction with the public. Such limitations would not preclude the Veteran from all forms of substantially gainful employment and, thus, the Veteran appears capable of performing the mental requirements of substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, the Veteran could perform jobs such as a telemarketer or customer service agent, where the employee makes or takes calls and primarily reads from a script, which does not require extensive training or experience, could be performed while seated and would not be impacted by the Veteran's use of a cane. A customer service agent interacts with customers to handle complaints, process orders and answer questions. These positions can be performed in a controlled environment, oftentimes from home, which would avoid exacerbations of the Veteran's psychiatric symptoms. Furthermore, the Veteran appears capable of performing certain assembly line or manufacturing positions, jobs that could be performed while seated, primarily requiring the use of the upper extremities. Such positions would require little social interaction, and would be routine and repetitive in nature. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to a TDIU rating or a referral for consideration of an extraschedular TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating or a referral for consideration of a TDIU rating on an extraschedular basis is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.