Citation Nr: 21030419 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-06 009 DATE: May 18, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for an acquired psychiatric disorder prior to April 16, 2019 is denied. Entitlement to a rating of 50 percent, but no higher, for an acquired psychiatric disorder is granted from April 16, 2019. Entitlement to a rating of total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to April 16, 2019, the Veteran's acquired psychiatric disorder manifested, at most, in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From April 16, 2019, the Veteran's acquired psychiatric disorder manifested, at most, in occupational and social impairment with reduced reliability and productivity. 3. Throughout the period on appeal, the Veteran has been able to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to April 16, 2019, the criteria for entitlement to an increased rating in excess of 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9435. 2. As of April 16, 2019, the criteria for entitlement to a rating of 50 percent, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9435. 3. Throughout the period on appeal, the criteria for entitlement to a rating of total disability based on individual unemployability (TDIU), to include referral for extraschedular consideration, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training (ACDUTRA) in the United States Army National Guard from January 1997 to April 1997 and served in the United States Army from February 2000 to August 2011. This case comes on appeal of an April 2013 rating decision. In June 2018, the Board denied the Veteran's claim for an increased rating for an acquired psychiatric disorder. The Veteran timely appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Memorandum Decision, the Court vacated the June 2018 Board denial of the underlying increased rating claim and remanded the Veteran's appeal to the Board. In November 2020, the Board observed that the record contained evidence that the Veteran's acquired psychiatric disability had worsened since his most recent VA examination. The Board also noted that the issue of a TDIU had been raised by the record. Accordingly, the Board remanded the case to afford the Veteran and updated VA examination and to develop the TDIU issue. 1. Entitlement to an increased rating in excess of 30 percent for an acquired psychiatric disorder prior to January 9, 2021 2. Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder from January 9, 2021 Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). At the time of his claim, the Veteran's psychiatric disability was rated at 30 percent. Following the Board's most recent remand, the agency of original jurisdiction issued a February 2021 rating decision granting an increased rating of 50 percent, effective January 9, 2021. The Veteran is presumed to seek the maximum benefit available, therefore the Board evaluates the propriety of the rating from the date of the claim, to include whether an increase in severity is factually ascertainable within the one-year period prior to the claim. See 38 C.F.R. § 3.400; AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9435. For rating purposes, Diagnostic Code 9435 is included among the General Rating Formula for Mental Disorders ("Rating Formula") of 38 C.F.R. § 4.130. To be assigned a rating of 30 percent, the Veteran must demonstrate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasksalthough generally functioning satisfactorily, with normal routine behavior, self-care, and conversationdue to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss to include forgetting names, directions, recent events. To be assigned a rating of 50 percent, the Veteran must demonstrate 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. To be assigned a rating of 70 percent, the Veteran must demonstrate 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 that is 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. To be assigned a rating of 100 percent, the Veteran must demonstrate 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). In Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Court also held that a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Indeed, considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). The Veteran filed this claim in June 2013. In VA treatment records prior to the claim, the Veteran indicated feeling very upset when something reminded him of in-service stressful experiences. He reported physical reactions, such as increased heart rate, trouble breathing, and sweating. He acknowledged avoiding activities or situations related to the experience. He described loss of interest in activities he used to enjoy and reported feeling distant or cut off from people. The Veteran identified difficulty sleeping, feeling extremely irritable with angry outburst, and difficulty concentrating. However, he denied any suicidal or homicidal ideations and showed no indications of an increased risk in clinical presentation. See Temple VA Medical Center Records, September 2012. The record then demonstrates that the Veteran's symptoms began to improve after adjusting to new medication. By an October 2012 treatment appointment, he reported feeling "pretty good." In January 2013, the Veteran indicated that things were "a lot better," noting that he had gotten a new job with the Social Security Administration (SSA), was tolerant of his medication, and was sleeping well. At that time, his appearance and speech were normal, his affect was notably bright and pleasant, and he demonstrated no suicidal or homicidal ideations or psychosis. In June 2013 VA treatment, the Veteran complained of nightmares but reported that he otherwise had no complaints. In July 2013 evaluation, the Veteran still had complaints of nightmares. He had normal appearance and speech, with an affect congruent to mood. He did not endorse or convey psychotic thought content and denied suicidal or homicidal ideations. In August 2013 VA treatment, the Veteran's provider noted symptoms characterized by transient depression and panic attacks during flashbacks. The Veteran reported such flashbacks occurred once or twice per week. The Veteran reported experiencing depression but denied suicidal or homicidal ideations. The Veteran continued to work in his job with the SSA. He was living at home with his wife and one daughter, with whom he had a strong relationship. The Veteran reported having several friends and being an active participant in his church. He described enjoying watching sports on television, playing softball, and working out daily. At the time, his appearance and hygiene were appropriate. His speech was normal with no unusual psychomotor activity. His affect was congruent to his mood and his thought processes were normal. Later, in September 2013 treatment, the Veteran complained of flashbacks, hypervigilance, insomnia, and nightmares about service. His mental status examination was otherwise unchanged. In December 2014, the Veteran underwent a VA examination. At that time, the examiner diagnosed Other Specified Trauma and Stressor-Related Disorder. The examiner reported that the Veteran's disability manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner reported that the Veteran's disability manifested in symptoms of depressed mood and anxiety. In describing his professional history, the Veteran reported that, after his discharge from the military, he initially went to college for a year and a half and then was able to continue school part-time as he worked full-time for SSA. Subsequent to the VA examination, the Veteran's mental health treatment was primarily in the form of medication management until January 2016. During that period, the Veteran's medication was adjusted as he noted chronic, high levels of anxiety. The Veteran declined attending psychotherapy as it conflicted with his work schedule. On examination, the Veteran was consistently found to be alert and oriented with coherent speech and appropriate affect. He presented with no delusions or hallucinations and did not endorse suicidal or homicidal ideations. In January 2016, the Veteran sought to begin psychotherapy. He described a continuing conflict with his work schedule but was willing to arrange for a therapy schedule that would fit his needs. At that time, he stated that he had not been doing too well. He acknowledged ongoing physical health problems but also that he was feeling anxious all the time. He rated his depression at a level of 6 out of 10 and anxiety at a level of 4 out of 10. He related those symptoms to ongoing global psychosocial stressors. He also reported continued symptoms associated with anger, irritability, and mood swings. He reported sleeping between four and six hours per night, with continued nightmares. He described his mental concentration and memory as "fair." The Veteran denied any suicidal or homicidal ideations as well as auditory or visual hallucinations. He was observed to be alert and oriented and appropriately dressed. His mood was euthymic and his affect was congruent. Speech and psychomotor activity were normal. His thought process was logical and goal-directed and he demonstrated no overt signs of psychosis. The provider observed the Veteran's insight and judgment to be fair. During this session, the Veteran agreed to adjustments in his medication to better regulate his symptoms. After the January 2016 appointment, the Veteran continued with his psychotropic medication but ultimately declined individual psychological counseling. An August 2016 telephone note shows that the Veteran and his then wife had been in couples counseling in the private sector but appeared on the way to a divorce. Nevertheless, the Veteran indicated that the counseling had been helpful, regardless of what happened in his marriage and that he did not desire individual psychotherapy at that time. In September 2016 medication management, the Veteran described himself as doing "alright." At that point, he was going through a divorce and reported depression at a level of 2 out of 10 and anxiety at a level of 4 out of 10. He denied any significant symptoms associated with anger, irritability, or mood swings. He continued to report sleeping approximately four to six hours per night and denied nightmares at that time. He continued to describe his mental concentration and memory as "fair." The treating provider observed the Veteran to be alert and oriented and appropriately dressed. His mood was euthymic with a congruent affect. Speech, psychomotor activity, thought process and thought content were all normal. Insight and judgment were noted as fair. The Veteran denied suicidal or homicidal ideations. The Veteran's mental health treatment record is then generally silent until January 2018, as the Veteran relocated and established himself as a patient in a new VA clinic. In January 2018, the Veteran was seen as a walk-in patient, stating that he had been out of medication for about a month and had noticed a problematic increase of irritability and lack of focus that had begun to affect his job. He was also starting to experience "déjà vu" dreams of experiences in the military. The Veteran denied suicidal or homicidal ideations at that time. A depression scale screening score at that time indicated the need for active treatment of depression. In an evaluation at that time, the Veteran reported that he was living with his daughter, his girlfriend, and his girlfriend's two sons, and that it was a healthy environment. He reported that he was still working in an office job with the SSA and that he did get irritated at times at work. A mental status examination found that appearance was normal, and behavior was cooperative. The Veteran's speech was normal, mood was euthymic, and affect was congruent with mood. Hus thought processes were linear, logical, coherent, and goal-directed, and thought content was within normal limits. Memory and cognition were grossly intact, and insight and judgment were average. The Veteran was reevaluated in March 2018 having resumed medication. He reported feeling as though the medication leveled out his mood. He reported regular nightmares that gave him cold sweats, averaging three times per week. He also noted irritability at times. He stated his level of interest was "pretty good during the day" and that concentration at work was "pretty good." He noted some difficulty dealing with his daughter who was having problems with depression. A mental status examination was consistent with his prior treatment visit. At a follow-up appointment in April 2018, the Veteran's condition was largely the same. He did, however, report that, although he was enjoying his life, he was tired all the time due to a demanding job. He reported that his anxiety was constant and that he had a tendency to ruminate on things that might go wrong. Although a mental status examination was relatively consistent with those of previous visits, at this appointment his mood was notably anxious. The Veteran then continued with medication monitoring appointments for several months. During this time, mental status examinations were consistent. The Veteran appeared appropriately dressed and groomed. His affect was congruent to his mood. His speech was normal, thought processes were linear and logical, and thought content was within normal limits. His memory and cognition were grossly intact, insight and judgment were average, and the Veteran denied suicidal or homicidal ideations. Through January 2019, depression and anxiety screening scores indicated mild to moderate depression and anxiety. In April 2019, a depression screening score was indicative of severe anxiety, requiring active treatment. Then, in June 2019, the Veteran reported having an episode that made him miss two days of work. He relayed a particularly disturbing dream related to a combat experience, after which he stayed in bed for two days. He reported that he was experiencing increased anxiety and reliving of memories when triggered by environmental factors such as gasoline. The Veteran reported being irritable every day, although his medication helped control it. However, he stated that he felt like he was abusing the Veterans' Crisis Line and that following the particular episode described above, he talked to someone on the Veterans' Crisis Line for three hours. At that appointment, a depression scale screening indicated only mild depression, but the Veteran's anxiety scale screening was at the maximum, indicating severe anxiety. Notably, the Veteran was appropriately dressed and groomed. His speech was normal, and his thought process was linear, logical and goal-directed. His mood was anxious, as discussed above, and his affect was congruent to his mood. Cognition was grossly intact, he denied hallucinations as well as suicidal or homicidal ideations. Insight and judgment were fair to average. The Veteran then had an initial appointment with the VA behavioral health department. He reported wanting to address symptoms of concern, to include depression, anxiety, racing thoughts, a reduced need for sleep, impulsivity, mood swings, anger problems, difficulty sleeping, and compulsive repetitive behaviors. In July 2019, the Veteran reported a modest improvement in his mood symptoms, in part due to a recommended sleep consolidation effort. His mood continued to be anxious and restless and his affect at that time was slightly animated. An anxiety screening score indicated a moderate condition that should be carefully evaluated, while a depression screening score indicated moderate depression. His mental status was otherwise deemed to be within normal limits. Later in July 2019, the Veteran continued to demonstrate an anxious and restless mood. His depression screening score was indicative of mild depression, while his anxiety screening score once again indicated severe anxiety, meriting active treatment. Following the July 2019 appointments, the Veteran continued to have depression scale scores indicating moderate depression and anxiety scale scores indicating severe anxiety. In January 2020, the Veteran reported that he had run out of medication the week before, and that his anxiety score would have been lower otherwise. During that appointment, the Veteran became tearful when talking about his time alone. He noted that his mood had been "tearing [him] up" since running out of medication and that he had been having trouble sleeping with high levels of anxiety. At that time, his appearance, speech, and thought processes were within normal limits and he denied suicidal or homicidal ideations. In a February 2020 appointment, the Veteran reported improved mood and anxiety since getting back on medication. He identified a lot of positive things happening in his life, including finalizing his divorce and more time spent with a friend. He noted improved energy and concentration, with decreased anxiety. At that time, he was living with his daughter and continued to work for the SSA. He was setting up a woodworking shop in his garage and reported watching baseball and auto racing in his free time. The Veteran was alert and oriented, with normal speech and mood-congruent affect. His thought process was organized, linear, and logical. Cognitive abilities were intact. He denied hallucinations as well as suicidal or homicidal ideations, and his insight was fair while his judgment was good. An anxiety screening was indicative of moderate anxiety. In a May 2020 appointment, the Veteran reported having a breakdown over the weekend. He stated that he did not normally drink alcohol, but was at a celebration for his sister and drank too much. Afterward, he reported that it felt as though the drinking worsened his depression. He reported, however, that he did not want to make changes to his medications as it was "just a bad weekend," and instead decided that he would need to stay away from alcohol for the time being. He noted that he was getting a bit frustrated staying at home all day, since he was working from home as a result of the COVID-19 pandemic. In a July 2020 appointment, the Veteran's chief complaint was "cabin fever" due to being home all the time. He reported, however, that things had been going pretty well. At that point, he had been working from home for four months, but he tried not to stay inside all day and walked his dog regularly. He also worked in his woodshop and had started to do some landscaping around the house. He reported that his anxiety was "always there" but felt it was manageable. He denied any difficulty with concentration, appetite, or sleep. In an October 2020 appointment, the Veteran reported that he had been home a lot, and always alone, so there had been more anxiety and depression. However, he stated that he had made plans to hang out with some friends and would be going to a happy hour with coworkers that day. He reported that his medication was working well. His energy had improved, and he had little to no issue with concentration. He noted that he had been "very, very irritable," but since it was just him at home, he had had no other people to get irritable with. He was wondering at the time if the dosage of his anxiety medication could be increased. In a December 2020 appointment, the Veteran reported that increased dosages of his medications had helped to improve his anxiety. He continued to feel "on edge" but it was manageable, especially when he stayed active. He noted that the frequency of his nightmares had recently increased, but that they were not as intense as before. The Veteran then underwent a new VA examination in January 2021. At that time, the examiner diagnosed unspecified depressive disorder with anxiety. The examiner reported that symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Based on the results of the January 2021 examination, the AOJ determined that the Veteran's acquired psychiatric disorder warranted a rating of 50 percent, as of the date of that examination. The AOJ simultaneously determined that the disability did not warrant a rating in excess of 30 percent prior to that point. After a thorough review of the record, the Board finds that a 50 percent rating, but no higher, is warranted as of April 16, 2019. Prior to April 16, 2019, a rating in excess of 30 percent is not warranted. As was discussed above, a 30 percent rating is warranted when the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasksalthough generally functioning satisfactorily, with normal routine behavior, self-care, and conversationdue to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and mild memory loss to include forgetting names, directions, recent events. To be assigned a rating of 50 percent, the Veteran must demonstrate 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. To be clear, the Board does not evaluate the Veteran's disability based on one specific symptom, or the severity at one snapshot in the record. Rather, the goal is to attempt to determine the Veteran's overall social and occupational impairment. In doing so, the Board considers not just the frequency and severity of the Veteran's symptoms, but also the effects they have on his ability to maintain a personal and professional life. Here, prior to April 16, 2019, the overall picture of the Veteran's disability best matches occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Although the Board acknowledges that the Veteran's symptomsto include depressed mood, anxiety, and chronic sleep impairmenthappen to be contemplated by the 30 percent rating as well, the Board's determination is primarily due to the evidence of the Veteran's overall functioning. From the time of his June 2013 claim until April 16, 2019, the Veteran functioned at a high professional level. Indeed, he transitioned from a full-time undergraduate program to a full-time job, while continuing to go to school on a part-time basis at the same time. This demonstrates significant occupational capacity. Meanwhile, during this time, the Veteran appears to have been well engaged in social activities, with significant involvement in his church. Although the Veteran's marriage ultimately ended in divorce, he appears to have maintained a good relationship with his daughter and was a support for her during this time. The Veteran's depression, anxiety, irritability, nightmares, and difficulty sleeping may have decreased his efficiency in his work, and at times made him unable to perform some tasks, however, there is no indication that these symptoms at any point reduced his reliability on either a social or professional level. Thus, there is nothing to warrant a rating in excess of 30 percent. Moreover, as was discussed above, there is nothing of record to indicate that the Veteran's symptoms warranted a higher rating in the one-year period prior to his filing the claim. The Veteran's April 16, 2019 VA treatment appointment indicated a notable increase in severity of the Veteran's symptoms. This was the first time at which it became factually ascertainable that the Veteran's anxiety symptoms had increased to a severe level. The effect of these symptoms became apparent in the Veteran's June 2019 appointment when he noted that he had missed two straight days of work after a severe nightmare caused him not to be able to get out of bed. At that time, the Veteran noted that he was having flashbacks triggered by environmental stimuli that reminded him of combat. His anxiety screenings from that point were more frequently than not indicative of severe anxiety, and he began to report increased irritability. Although the Veteran was able to maintain his employment throughout this time, he acknowledged that being forced to work from home was helpful in the sense that his extreme irritability could not cause any negative interactions with his coworkers. In other words, as of April 16, 2019, the Veteran's began to demonstrate symptoms that were ultimately severe enough to prevent him from interacting at all with the outside world for a duration of several days. Although the Veteran ultimately recovered and was able to resume his activities, the Board considers such a lapse in capability to represent reduced reliability in social and occupational functioning. Thus, from April 16, 2019, a rating of 50 percent is warranted. A higher rating is not warranted at any point during the period on appeal. To warrant a rating of 70 percent, the Veteran would need to demonstrate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Here, the Veteran has maintained a job with the same employer throughout almost the entire period on appeal. Although he has endured some hardship in his romantic relationships, the Veteran has maintained a good relationship with his daughter. He described the difficulty of being isolated during the COVID-19 pandemic, and expressed happiness when able to see friends and coworkers in a social setting. He has recognized the importance of keeping busy and has developed new hobbies to do so. Throughout the period on appeal, the Veteran has shown normal insight and judgment, normal speech, appropriate hygiene and grooming, and he has consistently denied suicidal or homicidal ideations. Thus, the preponderance of the evidence strongly suggests that a rating in excess of 50 percent is not warranted at any point during the period on appeal. Likewise, the Veteran has not demonstrated the total occupational and social impairment necessary to warrant a 100 percent rating at any point. Accordingly, prior to April 16, 2019, the preponderance of the evidence is against a finding that a rating in excess of 30 percent is warranted. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From April 16, 2019, the evidence demonstrates that the Veteran's acquired psychiatric disorder symptoms warrant a rating of 50 percent, but no higher. 3. Entitlement to a rating of total disability based on individual unemployability (TDIU) It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. 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 or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For consideration under these provisions, disabilities resulting from common etiology or a single accident will be evaluated as one disability. Id. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. Here, based on the Board's findings above, the Veteran is schedularly eligible for a TDIU as of April 16, 2019. However, neither a schedular TDIU as of that date, nor referral for consideration of TDIU on an extraschedular basis prior to that date is warranted. Notably, the Board raised the issue of entitlement to a TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) as the record indicated that the Veteran's psychiatric disabilities may have interfered with his employment. Accordingly, in its most recent remand, the Board instructed the AOJ to afford the Veteran the opportunity to submit a VA Form 21-8940 to provide information regarding his employment. The Veteran did not respond to this request. However, based on the record, it is clear that the Veteran has maintained employment with the Social Security Administration since approximately 2013. Prior to this, he was a full-time student in a four-year undergraduate program. The Veteran has described his employment as full-time and he has discussed the move to working from home during the COVID-19 pandemic. There is no indication that the employment is marginal, nor has there been any indication that the Veteran operates in a protected work environment. Thus, there is absolutely no evidence to demonstrate that the Veteran has been unable to secure and follow a substantially gainful occupation at any point during the period on appeal. (Continued on Next Page) Accordingly, as the preponderance of the evidence is against such a finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim for a TDIU from April 16, 2019. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, there is no basis to warrant referral for consideration of a TDIU on an extraschedular basis prior to April 16, 2019. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.