Citation Nr: 21030205 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-03 861 DATE: May 18, 2021 ORDER 1. The Veteran's prior claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. 2. The reopened claim of entitlement to service connection for PTSD is denied. 3. Entitlement to service connection for a psychiatric disorder, other than PTSD, to include major depressive disorder and anxiety disorder, is denied. 4. Entitlement to a total disability rating for compensation due to individual unemployability (TDIU) prior to May 1, 2015 is denied. 5. Entitlement to referral for consideration of a TDIU rating from May 1, 2015 is denied. FINDINGS OF FACT 1. Service connection for PTSD was denied in a July 2014 rating decision. The Veteran did not appeal the decision or submit new and material evidence within one year thereafter. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for PTSD. 3. The preponderance of the evidence is against a finding that the Veteran's claimed in-service stressors actually occurred. 4. The Veteran's psychiatric disorder, other than PTSD, to include major depressive disorder and anxiety disorder, did not have its onset in service and is not otherwise related to service. 5. 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 July 2014 rating decision that denied service connection for PTSD is final. The criteria for reopening the claim for service connection for PTSD on the basis of new and material evidence have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 3. The criteria for service connection for a psychiatric disorder, other than PTSD, to include major depressive disorder and anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 4. The criteria for entitlement to a TDIU rating were not met prior to May 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 5. The criteria for referral for an extraschedular TDIU rating have not been met from May 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1968 to March 1971. The Veteran testified at a virtual Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of the hearing has been incorporated with the Veteran's claims file. These matters were most recently denied in an October 2016 rating decision. That decision reopened a prior claim for service connection for PTSD, but did not address whether new and material evidence had been received in order to warrant reopening. The Board will address the issue of reopening herein. The Veteran has alleged that he is unemployable due to his combined disabilities of hearing loss, tinnitus, and psychiatric disorders. The Veteran has indicated that he has PTSD resulting from a reported secret mission to Vietnam that took place over eight days in 1969. In an April 2016 Statement in Support of Claim for PTSD, the Veteran stated that he was stationed in Germany working as a radio operator and repairman and was sent "on a secret mission to set up a radio station in Vietnam." He indicated that he was not provided information about the mission in advance. During his February 2021 hearing, the Veteran stated that while he was in Germany, he was supposed to get two weeks off. The Veteran stated that his Commander informed him of a free plane that would take him from Germany to either China or Japan, where he could spend his two weeks off. The Veteran stated that, only after boarding the plane, he was approached by a Major and informed that he was actually on a secret mission to Vietnam. In his April 2016 statement, the Veteran described several stressors, all of which he claimed to have occurred in Vietnam, to which he has attributed his psychiatric disorders. He stated that, while in Vietnam, "we experienced a barrage of rocket and mortar attacks daily. I was afraid for my life." He stated that he helped medivac severely wounded soldiers to hospitals. The Veteran stated that, while setting up the radio station, "I witnessed a little girl throw a grenade and kill a guard. Another guard emptied his M16 clip on the little girl and more or less cut her in half." Additionally, the Veteran indicated that he would hear radio communication between the North Vietnamese and American officials as to how the war was going to be fought, and he would have to decode and recode the communication. He stated, "I knew about all the people killed an[d] injured, some of these that I went through basic and AIT with. At this time I can't [remember] these names." In February 2021, the Veteran testified that after he finished setting up the radio station, he was returned to Germany. In 2017, the Veteran separately began reporting that part of his duties as a radio operator included listening to radio transmissions. He indicated that he would overhear communication between the Vietnamese and American officials. He alleged that these officials would negotiate deals over the radio in which "hills were being sold for money and a body count." He indicated that he had friends killed as a result. At his February 2021 hearing, the Veteran explained that he believes the United States was allowing American soldiers to be killed in exchange for control of certain Vietnamese land. New and Material Evidence New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-20 (2010). The Veteran's claim for PTSD was previously denied in a July 2014 rating decision because VA was unable to verify the Veteran's service in Vietnam. The Veteran did not appeal this decision or submit new and material evidence within one year thereafter and the rating decision became final. However, subsequently, the Veteran submitted a private psychological assessment, wherein the psychologist assessed the Veteran with combat-related PTSD based on being in Vietnam. The Veteran also submitted the last name of a servicemember that he believes he heard was killed while listening to radio transmission in Vietnam. This evidence was not previously part of the record before agency adjudicators and relates to an unestablished fact necessary to substantiate the prior claim. Accordingly, the Board finds that new and material evidence has been submitted in relation to the Veteran's claim for service connection for PTSD, and the claim is reopened. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD specifically requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). For the purposes of establishing service connection for PTSD, medical evidence diagnosing PTSD must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. Regarding the in-service stressor element of a claim of service connection for PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that credible supporting evidence means that the Veteran's testimony cannot, by itself, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See 38 C.F.R. § 3.304(f)(3); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Patton v. West, 12 Vet. App. 272, 277 (1999). Instead, the record must contain service records or other independent credible evidence corroborating the Veteran's testimony as to the alleged stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records that are available must support and not contradict the Veteran's lay testimony concerning stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of service connection for PTSD or other psychiatric disorder. The reasons follow. 1. Entitlement to service connection for PTSD Although the Veteran has received a PTSD diagnosis, the record does not establish credible, supporting evidence that the claimed in-service stressors actually occurred. Significantly, there is no credible evidence that the Veteran served in Vietnam. The Veteran's service treatment records do not contain evidence of service in Vietnam. The Veteran reported that he was in excellent health and denied any psychiatric symptom upon entrance examination in January 1968. The Veteran's service treatment records and personnel records indicate that the Veteran did not complain of or receive treatment for any mental health issues during active duty. On separation examination in December 1970, the Veteran received a normal psychiatric clinical evaluation. In March 1971, the Veteran signed a statement indicating that there had been no change in his medical condition since his December 1970 examination. Likewise, the Veteran's personnel records do not document service in Vietnam and demonstrate that the Veteran's only foreign service took place in Germany. VA has exhausted all options in an effort to verify the eight days that the Veteran reported spending in Vietnam and the Veteran's alleged stressors. VA requested research assistance from the Joint Services Records Research Center but they had no record of the Veteran's reported visit to Vietnam. They coordinated their research with the Army Investigative Records Repository but also were unable to confirm the events. Finally, VA requested review of the Army Morning Reports by the National Personnel Records Center for the Veteran's unit while in service, but there was no mention of Vietnam service. A VA memorandum associated with the claims file lists all attempts to verify the Veteran's stressors and Vietnam service but states that all options have been exhausted and further attempts would be futile. Following the Veteran's discharge from service, the record shows no treatment for a mental health condition or complaints for more than 10 years. In August 1982, the Veteran was in a motorcycle accident, wherein he sustained significant injuries after his stationary motorcycle was hit by a moving vehicle going over 30 miles per hour at a traffic light. Records submitted by the Social Security Administration (SSA) show that the Veteran was assessed with posttraumatic stress syndrome by an examiner in March 1986, but next to the diagnosis was listed the date of the Veteran's motorcycle accident, indicating the stressor responsible for the diagnosis. No mention of the Veteran's military service or Vietnam was documented in that medical record. The record does not indicate that the Veteran began consistently reporting service in Vietnam until 2010. The Veteran submitted a private psychological assessment in March 2016 completed by Peter Calvo, Psy.D. Based entirely on the Veteran's self-reporting, Dr. Calvo described the Veteran as a Vietnam Theater Veteran and assessed him with combat-related PTSD and major depressive order relating to the stressors that the Veteran alleged to have occurred in Vietnam. The Board notes that Dr. Calvo indicated the Veteran to have been in Vietnam in 1967. The Veteran did not enter the military until 1968. This demonstrates that Dr. Calvo was not familiar with the claims file and was dependent on the Veteran's self-reporting in making his assessment. The Veteran later stated that he mistakenly reported the year 1967 but that he was actually in Vietnam in 1969. The Veteran's lay testimony alone can serve to establish the Veteran's reported stressor only if the evidence indicates that the Veteran engaged in combat with the enemy or was a prisoner of war. 38 C.F.R. § 3.1(y), 3.304(f), 4.125(a). The preponderance of the evidence is against a finding that the Veteran engaged in combat or was a prisoner of war. The Veteran has reported that he never trained for combat, and he has denied engaging in combat, being shot at, or returning gunfire, contrary to the characterization of Dr. Calvo. No corroborating evidence has provided evidence that the Veteran served in Vietnam. Of record are the Veteran's service personnel records, which do not show service in Vietnam or a metal indicative of service in Vietnam, such as the Vietnam Service Medal. As there is no supporting evidence to corroborate the Veteran's reported stressors, the Board cannot grant the Veteran's claim for service connection for PTSD, as corroborating evidence is necessary for the alleged stressor(s). While service connection for PTSD cannot be granted, the Board notes that, due to a lack of substantive proof relating to the Veteran's allegations from his time in service, the findings and opinions of record relating to service connection are based solely on the Veteran's own reports and allegations of events. While the Veteran is competent to report his observed symptoms, the Veteran's credibility has been significantly diminished as a result of recurrent inconsistencies in his reporting of events dating back to the Veteran's time in service, relating to each of the claims addressed herein. For example, the Veteran's description of his alleged stressors has changed over time. In a December 2011 Statement in Support of Claim for PTSD, under "description of the incident," the Veteran wrote, "maintained radio towers in Europe with no down time. Signed a non-disclosure with Army upon discharge. For detailed records and accounts, check my MOS and disclaimer." No mention of Vietnam or his alleged stressors was made. In subsequent statements submitted in in January 2013 and April 2016, the Veteran described each of his alleged stressors as occurring in Vietnam in greater detail, as described above. He stated that he was there for eight days. As to radio communication he overheard between American and Vietnamese officials, he stated that it was about "how the war was going to be fought" and did not mention land being exchanged for the bodies of American soldiers. He said he knew about all the people killed or injured, some who he had known personally, but he could not remember names. In April 2016, the Veteran submitted a statement saying, "I did not know the name of the people who were killed or their unit assignment." The following month, he submitted a statement saying that he could remember the name of one service member he heard was killed. His last name was Abbott and no first name could be provided. The Veteran believed he was a sergeant. In a January 2017 statement, the Veteran began to report the alleged specifics of American officials allowing US soldiers to be killed in exchange for control of Vietnamese territory. Later that year, when describing these communications, the Veteran detailed one exchange resulting in "many US deaths, friends of mine." The Veteran's statement that he had friends killed is inconsistent with his prior report that he did not know the names of the people killed or his subsequent report that he could recall one last name of a serviceman that he heard over the radio. There is not a clear explanation as to why the Veteran's reported stressors developed over time, and he did not report the alleged communications between American and Vietnamese officials earlier. Additionally, the Veteran has submitted three separate VA Form 21-8940s (Application for Increased Compensation Based on Unemployability), which contain conflicting information relating to basic facts pertinent to the within claims. The first application was received in July 2010. Therein, the Veteran reported that his "hearing" prevented him from securing or following a substantially gainful occupation. He reported that he last worked in 1984 and that he left his last job due to his hearing disability. The Veteran also reported that he had completed two years of college. The Veteran's second application was received in August 2014. The Veteran reported that hearing loss prevents him from securing or following any substantially gainful occupation. However, in this instance the Veteran reported that he last worked in 1982, and that he did not leave his last job due to his hearing loss disability. He did not report his education level. A third application was received in April 2016. In this instance, the Veteran reported that hearing loss and PTSD prevent him from securing or following any substantially gainful occupation. He again reported that he last worked in 1982, but this time stated that he did leave his last employment because of hearing loss and PTSD. Alternatively, remote treatment records provided by the SSA suggest that the Veteran's 1982 motorcycle accident was the primary factor in the Veteran leaving the workforce in 1984. In a 2001 psychiatric evaluation, the Veteran reported that he last worked in 1984 at a lead foundry and that he stopped working because of chronic pain and injuries sustained in his 1982 motorcycle accident. These statements reveal significant contradictions relating to material facts that are relevant to TDIU consideration, including work history and disability onset. Above the signature on the TDIU applications, a claimant certifies that "the statements in this application are true and complete to the best of my knowledge," and the form also notes severe penalties may result in the event the statements provided are false or fraudulent. Making false statements while certifying the truth of such statements damages the Veteran's overall credibility. For these reasons, credible supporting evidence in order to verify the Veteran's reported in-service stressors are of particular importance, and statements and opinions based solely on the Veteran's self-reporting are of no probative value. No credible supporting evidence shows that the Veteran's reported stressors actually occurred and, therefore, the preponderance of the evidence is against a determination that the Veteran's reported in-service stressors actually occurred. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran's claim for service connection for PTSD is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a psychiatric disorder other than PTSD For purposes of assessing service connection, the above analysis of the Veteran's PTSD claim is incorporated herein. The Veteran has reported that during his service in Germany as a radio operator, he spent a lot of time in a small room listening to radio transmissions, isolated for extended periods of time. At the Veteran's February 2021 hearing, the Veteran's representative suggested that these periods of isolation possibly "resulted in depression and other things;" however, the Veteran did not allege this. The Veteran reported that he has experienced nightmares for many years and that he drank heavily at times during service to forget the things he saw and heard on active duty. The Veteran's wife also testified that, by the time she met her husband approximately 40 years ago, he already had symptoms of depression and irritability. She indicated that, by the time they married, he was experiencing nightmares and sleep difficulties. The Veteran reported that he did not seek treatment for any mental health issues until 2002, and, instead, managed his symptoms on his own after his discharge from service. As to a psychiatric disorder other than PTSD, the Board acknowledges that the Veteran has variably been assessed with major depressive disorder and anxiety disorder, sufficient to establish a present disability. However, the weight of the evidence is against an in-service incurrence of a psychiatric disorder or a nexus between a present psychiatric disorder and an in-service disease or injury. As stated, the Veteran's service treatment records are absent for any complaints or treatment for a psychiatric disorder. On separation examination in December 1970, the Veteran received a normal clinical psychological evaluation. Three months later, the Veteran reported that his medical condition had not changed. Thereafter, the record does not indicate any mental health issues until after the Veteran's 1982 motorcycle accident. A January 1984 physical examination resulted in a diagnosis of posttraumatic cephalgia. The Veteran was granted SSA disability benefits in 1987 due to an affective disorder; however, SSA records do not indicate the Veteran's military service as a causative factor. Treatment records from 1996 indicated the Veteran to suffer continued cephalgia with resultant depression. During the same visit, the Veteran reported suicidal ideation. Treatment notes during the 1990s also document the Veteran to have reactive depression on multiple occasions, which was further noted to be associated with the Veteran's sleep difficulties. These records do not mention the Veteran's military history and suggest that the Veteran's symptoms were in response to intercurrent life stressors and physical health problems. The Veteran underwent a psychiatric examination in 2001 and was assessed with major depressive disorder, severe, in partial remission. The Veteran reported no significant mood problems, except for irritability, which he attributed to chronic pain resulting from his 1982 accident. The examiner indicated the Veteran to have a long history of major depression, complicated by a history of severe injuries sustained in the Veteran's motorcycle accident. No mention was made of the Veteran's military serving as a contributing factor to the Veteran's depression. Private treatment records from 2007 to 2009 indicated the Veteran to receive routine medication management for depressive symptoms and insomnia but suggest no relationship to the Veteran's military service. The Veteran established treatment through VA in early 2011 for sleep and nightmare problems. He recorded a negative depression screening in June 2011 and denied a history of depression, anxiety, PTSD, or psychiatric disorder. He recorded a positive depression screen in 2012. Thereafter, although the Veteran was noted to experience continued situational anxiety and depression, the Veteran's condition was primarily characterized as anxiety disorder, unspecified. In mid-2016, the Veteran presented with increased anxiety due to the Veteran's medical condition and recent mini-stroke. The Board again notes the 2016 private assessment of Dr. Calvo, who assessed the Veteran with major depressive disorder, with delayed expression, attributed to the Veteran's reported in-service stressors, as discussed above. The Board again notes that this assessment is of no probative value, as it is entirely dependent on the Veteran's self-reporting and reduced credibility. As stated, there is no credible corroborating evidence of record to suggest that the in-service stressors, on which Dr. Calvo based his assessment, occurred. The Court has held that opinions based on inaccurate factual premises are not entitled to probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, Dr. Calvo made no mention of any intercurrent causes for the Veteran's psychiatric symptoms, such as his 1982 motorcycle accident, which further indicates that Dr. Calvo was not familiar with the Veteran's treatment history. The weight of the evidence is against a finding that the Veteran has a non-PTSD psychiatric disorder that is attributable to the Veteran's military service. The longitudinal record demonstrates that the Veteran did not complain of or seek treatment for any mental health issues in service and received a normal psychological evaluation on discharge. The Veteran sought no treatment and received no diagnosis of a psychiatric disorder until after his 1982 motorcycle accident that caused the Veteran significant physical injuries. This accident serves as an apparent intercurrent causative event for the Veteran's psychiatric symptoms, as, thereafter, the Veteran was forced to stop working due to chronic pain and was noted to experience cephalgia with resultant depression. The Veteran attributed his irritability to chronic pain and, on multiple occasions, the Veteran's psychiatric symptoms were attributed to situational stressors or health problems. For nearly 30 years after the motorcycle accident, the Veteran and his treating sources did not attribute any psychiatric disorder to the Veteran's military service. This only occurred when the Veteran began to report in-service stressors, which were not mentioned in the prior 40 years and which are not corroborated by credible evidence of record. To the extent that the testimony of the Veteran's wife indicated the Veteran to experience irritability and sleep difficulty prior to his 1982 accident, she indicated that she did not meet the Veteran until approximately 10 years following discharge from active duty. Furthermore, the wife is a layperson, not competent to render a diagnosis. More probative value is assigned to the contemporaneous treatment records in the years after the Veteran's accident, during which the Veteran's psychiatric issues were routinely associated with the Veteran's pain symptoms, than the recollection of the Veteran's wife approximately 40 years after the fact. The Veteran's contemporaneous reports of his symptoms is 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). The Board notes that VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for a psychiatric disorder. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not establish that an event, injury, or disease occurred in service, or an indication that the Veteran's disability may be associated with the Veteran's service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria must be met, and at least one element is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for the Veteran's service-connection claim for a psychiatric disorder. For all the reasons stated herein, the preponderance of the evidence is against an award of service connection for a psychiatric disorder other than PTSD. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran's claim for service connection is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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 met the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to May 1, 2015, but do not meet the schedular criteria since May 1, 2015. The Veteran is service-connected for hearing loss (70 percent disability rating from January 26, 2010; 50 percent disability rating from May 1, 2015; and 20 percent disability rating from April 1, 2017), and right ear tinnitus (10 percent disability rating from January 26, 2010). Thus, the Veteran has had a combined disability rating of 70 percent from January 26, 2010; 60 percent from May 1, 2015, and 30 percent from April 1, 2010. It is noted that the Veteran's medical history contains treatment for multiple nonservice-connected disabilities, including significant musculoskeletal injuries resulting from a 1982 motorcycle accident; PTSD; anxiety disorder; major depressive disorder; and migraines, which cannot be considered for purposes of TDIU. The 60 percent criteria for hearing loss and tinnitus prior to May 1, 2015 meets the schedular criteria because both disabilities affect a single body system of auditory system. Since May 1, 2015, the schedular criteria are not met. 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 from May 1, 2015. "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 has reported that has was found to be disabled by the SSA as of January 1987, indicating him to be incapable of sustaining full-time employment. It is noted that such a finding is not binding on any determinations made by 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 records specifically indicate disability based on an affective disorder, for which the Veteran is not service connected. SSA records further reflect injuries sustained in the Veteran's 1982 motorcycle accident, for which he is not service connected. Accordingly, while SSA records are considered within the totality of the evidence, an SSA disability determination has no bearing on any finding made herein. For purposes of TDIU consideration, the above analysis of the Veteran's service connection claims 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 during the appeal period. The reasons follow. 3. Entitlement to TDIU or a referral for consideration of TDIU The Veteran became service-connected for hearing loss and right ear tinnitus in 2010. In July 2011, the Veteran indicated that he experiences worsened balance and migraine issues with use of his hearing aids and that he can only wear them for a few hours at a time. The Board notes that the Veteran has a long history of cephalgia, migraines/headaches, and balance issues dating back to his 1982 motorcycle accident, predating findings of hearing loss and for which the Veteran is not service connected. On VA examination in December 2011, the Veteran indicated that the functional impact of his hearing loss was that it was difficult to use the phone and understand voices in noisy places. He said that the functional impact of his tinnitus was that "cricket noises" made it hard to concentrate and affected his hearing. The Veteran also submitted several statements from friends and family in 2011 indicating the Veteran's increased hearing difficulties that required them to repeat themselves in conversation with the Veteran. In June 2013, the Veteran had his hearing aids cleaned and checked. His tubing was changed and the Veteran expressed satisfaction with the modification. No complaints were noted with use of his hearing aids. In 2014, the Veteran reported that he had continued his 10-year history of volunteering as an EMT, witnessing, injuries, gore, pain, death, environmental distress, and chaos. In October 2014, the Veteran submitted a private audiological assessment from W. Barry West, Ph.D., who stated that the Veteran has difficulty wearing hearing aids, resulting in worsening headaches. He stated that the Veteran's been using lipreading for many years. He stated that the Veteran's hearing loss has progressed significantly over the years and that, given the combined problems, employability options are extremely limited. The Board notes that determinations regarding employability are an issue reserved to the adjudicator. However, Dr. West's assessment is of little probative value as it is heavily contradicted by the longitudinal record. Dr. West indicated that the Veteran did not wear his hearing aids to the examination and, therefore, did not measure the Veteran's hearing with amplification. Despite reports that the Veteran cannot wear his hearing aids for extended periods, he has reported a daily routine that includes going to a restaurant to visit with friends, he has not demonstrated difficulty communicating with treatment providers, and he has been able to serve as a volunteer EMT. The record does not show evidence of significant exacerbations of his long-standing migraine symptoms relating to hearing aid use requiring urgent or inpatient treatment, and the Veteran has only sporadically mentioned the issue. Additionally, audiological testing does not indicate progressively worsening hearing. Rather, the Veteran's disability rating has been reduced from 70 percent to 50 percent to 20 percent between 2010 and 2017 based on the findings of audiological examinations. The Board finds that the Veteran's hearing loss and tinnitus are appropriately considered by their existing disability ratings, which are not suggestive of unemployability. Despite hearing loss and tinnitus, the Veteran has reported that he sings in his church choir, which would require adequate hearing to keep pace and harmonize with other choir members. The Veteran has consistently demonstrated the ability to communicate effectively with treating providers, and he did not exhibit significant hearing difficulties during his February 2021 Board hearing. The Veteran also did not mention difficulties associated with his use of hearing aids at the hearing. Additionally, the Veteran has been able to serve as a volunteer as an EMT, which is a critical, high-risk position dependent on the ability to communicate effectively with others. The Veteran underwent a VA audiological examination in October 2016. The examiner stated that, given the Veteran's hearing loss, he would have a hard time hearing conversation at a normal volume and would benefit from a quiet environment with limited ambient noise, as well as being able to look at people when they are talking. The examiner also indicated that tinnitus does not impact the Veteran's ability to work or activities of daily life. No mention of the use of hearing aids was mentioned in the examination report. The Board notes that the Veteran's regular activities demonstrate a higher level of overall functioning than indicated by the limitations suggested by this examiner, including the Veteran's participation in the church choir, and his volunteer work as an EMT, where he reported witnessing, injuries, gore, pain, death, environmental distress, and chaos, which would require the ability to communicate effectively outside a quiet environment with limited ambient noise. Consistent with the credibility issues discussed above, the record suggests that the Veteran has exaggerated his hearing loss at times. For example, in a July 2017 letter, the Veteran stated that it is impossible for him to talk on the phone. However, VA treatment records reflect multiple phone calls with the Veteran during the relevant period in which he is able to discuss his medical conditions and appointments. Additionally, the Veteran underwent another VA audiological examination in August 2017, after the Veteran's hearing loss disability rating was reduced from 50 percent to 20 percent in a January 2017 rating decision. The examiner stated that use of the Veteran's word discrimination scores was not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc. The examiner also indicated the Veteran's puretone test results to be invalid "because this examiner noted numerous inconsistencies in the Veteran's responses during the exam. For instance, during pure tone testing, the initial responses were 10-20 dB worse than final responses. Veteran was reinstructed three times during pure tone testing before final responses were recorded; each time he was reinstructed, pure tone thresholds improved 5-10dB. Time constraints prevented additional reinstruction and retesting for this segment of the exam, as results that were finally recorded took 2-3 times longer than the average pure tone test." The examiner went on to indicate further issues with the validity of testing due to the Veteran's responses: During word recognition testing (WRS), Veteran had to be instructed five times to provide a response to every phrase, even if the response was a guess. He stated three times, "it goes against my nature to guess when I'm not sure about something." It is this examiner's opinion that the word recognition scores that are recorded do not represent the Veteran's best attempt at accurately repeating the target word. Unfortunately, there is no way to prove that a subject is providing his or her best guess to every target word, but certain response patterns indicate, to an experienced examiner, that a subject is not offering his or her best guess, and this subject demonstrated some of these patterns. For instance, in addition to declining to offer a guess for every phrase presented, Veteran would frequently be delayed in the word repetition, though he was encouraged to provide an immediate response. Also, the experienced examiner knows that certain words presented to a subject who has sensorineural hearing loss will result in common errors (hall for hull, leg for lag, shore for chore). This subject did not make common errors; his errors were atypical (hole for home, bowl for boat, rag for rat). Since the C&P exams, from 2010 to the present, were conducted by a variety of different examiners, it is not possible for this examiner to comment on the reliability of the other C&P exams. It is difficult to ascertain if the other examiners had high confidence in the veracity of the Veteran's response patterns in word recognition testing. However, if the subject did not provide his best and most honest effort in WRS testing in any or all of the five C&P exams, this could account for the unusual fluctuations in WRS from one exam to the next. In conclusion, it is not possible for this examiner to state, with high confidence, that the subject was responding with veracity during pure tone and WDS testing on this most recent C&P exam date, 8/15/17. The Veteran's prior audiological examinations do not indicate such problems, suggesting that the Veteran may not have put forth his best effort as a result of his dismay over his decreased disability rating. The examiner reported the Veteran's own statements as to functional limitations, indicating that hearing loss requires him to adapt and use lipreading because he cannot understand what people are saying, and that sometimes tinnitus "stops me in my tracks." However, as discussed herein, the totality of the evidence shows that hearing loss and tinnitus has not significantly restricted the Veteran's daily activities and would not prevent the Veteran from securing or following substantially gainful employment. Regarding the Veteran's education, training, skills, and work history, the Veteran has reported that he completed two years of college. Following service, he worked at a lead foundry until 1984. He has variably reported that he did and did not leave his last employment due to hearing loss on his TDIU applications. However, the longitudinal record clearly indicates that the Veteran left his last employment due to symptoms of chronic pain and residuals of his 1982 motorcycle accident. The Veteran's ability to serve as a volunteer EMT is probative evidence against his hearing loss and tinnitus causing the Veteran to be unable to maintain gainful employment. Additionally, at the February 2021 hearing, the Veteran reported doing part-time woodworking in his shop, stating that he looks for people who wants projects because he can take all the time he wants. Despite the prolonged period since the Veteran last maintained full-time employment, the Veteran's work history, education, hobbies, and volunteer work demonstrate a diverse skillset and a capacity for learning, training, and adaptability that would not be hindered by his hearing loss and tinnitus. These attributes would facilitate the Veteran's return to substantially gainful employment. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran has some hearing difficulties resulting from hearing loss and tinnitus. However, the record does not suggest that these disabilities cause significant functional deficits that would preclude the Veteran's ability to work. The Veteran has reported a routine of going to a local restaurant to socialize with friends and that he enjoys singing in the church choir. He has demonstrated his ability to communicate by telephone and treatment records do not indicate communicative deficits when interacting with treatment providers. The Veteran does woodworking projects as a hobby and has reported that he spends a lot of time working outdoors. Additionally, the Veteran has maintained independence in his activities of daily living and has been able to volunteer as an EMT. As such, the Veteran's hearing limitations can be reasonably accommodated by restricting the Veteran to occupations that do not require routine interaction with the general public, and primarily allow for face-to-face communication without routine use of a telephone. As to the Veteran's mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran's service-connected disabilities have not been shown to cause the Veteran communicative deficits. Findings on mental status examination generally indicate the Veteran to be fully alert and oriented with intact cognitive functioning. The Veteran has demonstrated his ability to function in chaotic and high-stress environments from his work volunteering as an EMT. As the Veteran's service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence shows that the Veteran is mentally capable of performing 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's service-connected disabilities do not preclude him from work that would result in income at the level of substantially gainful employment. For example, the Veteran could perform work as an EMT. The Veteran has experience in this field and has performed these duties as a volunteer during the relevant period. The record does not demonstrate that hearing limitations would restrict him from performing such a job on a full-time basis. Additionally, the Veteran has reported an extensive history of woodworking and doing projects for others. This is a solitary hobby for the Veteran that requires little interaction with others and he enjoys taking his time. However, it does not appear that hearing limitations would prevent the Veteran from performing this work on a full-time basis. If such positions were not available to the Veteran, there are numerous other positions that would accommodate the Veteran's disabilities. For example, the Veteran's hearing disabilities would not preclude the Veteran from occupations such as a warehouse worker, assembly line worker, or custodian, positions that would involve repetitive tasks without significant social interaction, such as a packer and sorter at an Amazon warehouse. These are jobs that use everyday skills of lifting, cleaning, and organizing. 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 unable to secure or follow all forms of substantially gainful employment due to his service-connected disabilities. 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 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.