Citation Nr: 21032632 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 09-11 550 DATE: May 27, 2021 ORDER Entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD), effective February 18, 2011, but not earlier, is granted. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Effective February 18, 2011, resolving reasonable doubt in favor of the Veteran and appellant, a psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. 2. Sleep apnea is not shown to be due to, etiologically related to, or aggravated by any event, injury, or disease incurred in service, or a service-connected disability. 3. Prior to his death, the preponderance of the competent and credible evidence of record indicates that the service-connected disabilities did not preclude the Veteran from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD), effective February 18, 2011, but not earlier, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to service connection for sleep apnea were not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) were not met. 3 8 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to March 1972. The Veteran died in September 2019. The Appellant is the surviving spouse, who has been substituted for the deceased Veteran for the claims on appeal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2007 and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In October 2015, the Board denied entitlement to a rating in excess of 50 percent for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In an August 2016 Joint Motion for Partial Remand, the Court vacated the October 2015 Board decision that denied entitlement to an initial rating in excess of 50 percent for PTSD and remanded the matter to the Board for additional action consistent with its decision. In June 2013, October 2014, July 2017, December 2018, and August 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. In a July 2012 rating decision, the rating for PTSD with major depressive disorder with history of substance and alcohol abuse was increased to 50 percent effective February 18, 2011. Later, in an April 2018 rating decision, the rating for PTSD with major depressive disorder and panic disorder with history of substance and alcohol abuse was increased to 70 percent effective October 30, 2017. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher rating for PTSD remains on appeal. Increased Rating 1. Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD), effective February 18, 2011, but not earlier. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to rate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). This review is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The service-connected posttraumatic stress disorder (PTSD) with major depressive disorder and panic disorder with history of substance and alcohol abuse has been rated under the provisions of Diagnostic Code 9411. Under the provisions of Diagnostic Code 9411, a 30 percent rating is warranted 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). A 50 percent rating is warranted 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. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in rating 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 rating 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). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Posttraumatic stress disorder (PTSD) with major depressive disorder and panic disorder with history of substance and alcohol abuse is currently assigned a 50 percent rating effective February 18, 2011, and a 70 percent rating effective October 30, 2017. This claim for an increased rating was received by VA in February 2011. The appellant contends that the ratings assigned for a service-connected psychiatric disorder do not accurately compensate the severity of the psychiatric disability, and that higher ratings are warranted. After review of the relevant medical and lay evidence of record, resolving reasonable doubt in favor of the Veteran, the Board finds that, effective February 18, 2011, the Veteran's psychiatric disability was productive of occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood. Therefore, the Board finds that, effective February 18, 2011, but not earlier, the psychiatric disability warranted a 70 percent rating. Therefore, the claim for an increased rating of 70 percent for PTSD, effective February 18, 2011, is granted. The Board finds that at no point during the course of the appeal has the psychiatric disability been productive of total occupational and social impairment. Therefore, any claim for a rating in excess of 70 percent for a psychiatric disability must be denied. At a March 2011 VA examination, the Veteran was noted as being emotionally labile, easily tearful, and experiencing anxiety, panic, poor frustration tolerance, impatience, impaired concentration, anger dyscontrol, social avoidance, social withdrawal, interruptive insomnia, hopelessness, loneliness, helplessness, amotivation, anhedonia, avolition, and feelings of dejection and rejection. At the time of the examination, the Veteran was employed as a human resource manager. The Veteran also reported having a good relationship with his six children but being separated from his second wife of 20 years. On mental status examination, the Veteran did not exhibit impairment of thought process or communication, delusions, hallucinations, inappropriate behavior, suicidal thoughts, or homicidal thoughts. The Veteran did express difficulty remembering people's names. Overall, the Veteran's psychiatric disability was found to result in an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to PTSD or mental condition signs and symptoms, but generally satisfactory functioning (routine behavior, self-care, and conversation normal). In October 2011, November 2011, and December 2011, the Veteran screened positive for suicide risk but was not referred for evaluation and treatment as he was deemed low risk. At a November 2011 VA examination, the Veteran's psychiatric condition was found to result in occupational and social impairment with reduced reliability and productivity. The Veteran reported being separated from his wife but seeing her daily and getting along well with her. Symptomatically, the Veteran's psychiatric condition was found to result in depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, disorientation to time or place, hypervigilance, irritability, difficulty concentrating, and exaggerated startle response. On mental status examination, the Veteran had alert sensorium and cooperative attitude. He had intact cognition and was friendly and personable. Mood was mildly dysphoric, but affect was bright and full ranged. Speech was talkative, and normal in rate, tone, and volume. The Veteran denied suicidality, homicidality, or psychotic features. Insight was fair. Judgment appeared intact. At a March 2013 Board hearing, the Veteran indicated that PTSD symptoms included anxiety, depression, and sleep problems that required that he take sleeping pills. He could not deal with crowds and also stated that he had anger issues. As for relationships, he had been divorced and was separated from his second wife, and two of his children did not want to have anything to do with him. The Veteran stated that he had one friend and was wondering if that friend really wanted to be his friend. He got defensive if people approached him and he sometimes "went off" on people and became very defensive and very aggressive. He avoided getting in situations involving physical altercations. He tried to avoid going out and even felt uncomfortable when sitting through his granddaughter's third grade award presentation. He had some memory problems and struggled to remember the names of his 11 grandchildren. He also forgot what he was to buy when shopping at the grocery store and had to write things down in order to remember to pay his bills. He last worked two years prior after having been fired for the first time in his life from a company where he had worked for almost 23 years. He was currently separated from his spouse but was trying to get back together. He knew a lot of people, but tried to keep them far from his house. At a July 2013 VA examination, the Veteran's psychiatric condition was found to result in occupational and social impairment with reduced reliability and productivity. The Veteran reported living alone and being separated from his wife, but seeing her daily and getting along well with her. The Veteran also reported having some relationship with his children. Symptomatically, the Veteran's psychiatric condition was found to result in depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, hypervigilance, irritability, difficulty concentrating, and exaggerated startle response. On mental status examination, the Veteran was alert, oriented, and cooperative. He displayed adequate grooming and thought flow was linear, coherent, and goal oriented. The Veteran denied suicidality, homicidality, and psychosis. Eye contact was good, speech was normal, mood was fair, and affect was constricted but full range. The Veteran was deemed a reliable historian. In an August 2016 decision, the Court found that the medical evidence from November 2011 and July 2013 also showed the Veteran as experiencing obsessionality and depression affecting the ability to function independently. At an October 2017 VA examination, the Veteran's psychiatric condition was found to result in 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. The Veteran reported being married for 27 years and it being okay with some rough times. The Veteran also reported having six children, the youngest of which lived with him at times. He also reported being estranged from his two oldest daughters, but being in contact with all of his other children. The Veteran reported having a close friend. Symptomatically, the Veteran's psychiatric condition was found to result in depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, obsessional rituals which interfere with routine activities, hypervigilance, irritability, difficulty concentrating, and exaggerated startle response. On mental status evaluation, the Veteran was alert, oriented, and cooperative. The Veteran had good eye contact, and was casually dressed in appropriate attire. Mood was fair and affect was constricted but pleasant. Thought flow was linear, coherent, and goal directed, without evidence of suicidal or homicidal tendencies or ideation. The Veteran had intact cognition and memory and was a reliable historian. In support of the claim, the Veteran has also provided several self-written statements and written statements from family members detailing the behavior and mental changes they had noticed in the Veteran over the years. After a thorough review of the claims file, and resolving all reasonable doubt in favor of the Veteran, effective February 18, 2011, the date the increased rating claim was first filed, when considering the overall disability picture, the Board finds that the evidence of record shows that the Veteran's psychiatric disability is more nearly approximated by the criteria for a 70 percent rating under the Diagnostic Code 9411. The Board finds that the Veteran's psychiatric condition did not meet, or more nearly approximate, the criteria for a 100 percent as total occupation and social impairment, as is required for the next higher rating of 100 percent, have not been demonstrated. The Board finds that total occupational and social impairment was not shown during the course of the appeal. There is significant evidence of maintained familial relationships, which precludes a finding of total social impairment. The record indicates that, prior to his passing, the Veteran had a continued relationship with his wife of over 27 years, several of his children and grandchildren, and at least one friend. Therefore, as both total occupational impairment and social impairment are required for a 100 percent schedular rating, the Board finds that a 100 percent schedular rating was not warranted at any point during the course of this appeal as total social impairment has not been shown. The Board also notes that the Veteran has never displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or persistent danger of hurting self or others commensurate with a 100 percent rating. In this regard, the Board acknowledges that the symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, the Board finds that the Veteran's overall disability picture was most nearly approximated by a 70 percent rating. In considering whether the Veteran was entitled to a higher rating, the Board has carefully considered the contentions and assertions that a psychiatric disability was of such severity so as to warrant increased schedular ratings. In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which are found to be persuasive or unpersuasive and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as anxiety, and depressed mood, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the overall disability picture does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent rating, but not higher, effective February 18, 2011, but not earlier, for a psychiatric disability are met. Therefore, the claim for an increased rating is granted to that extent only. The Board finds that the preponderance of the evidence is against the assignment of any higher rating. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for sleep apnea. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the entirety evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Appellant contends that the Veteran's sleep apnea was secondary to service-connected PTSD. The Veteran's service treatment records contain no complaints of, treatment for, or diagnosis of any sleep disorder while in service. In November 2005, the Veteran was diagnosed with significant obstructive sleep apnea (OSA), after undergoing a sleep study. In a March 2021 VA opinion, after review of the Veteran's claims file, the examiner, a Nurse Practitioner, opined that the claimed OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that, upon separation from service, there were no suspicions, concerns, or a diagnosis of OSA. Records for sleep related complaints were silent until 2004, despite opportunity to report at visits in 2001. Lay statements of chronicity were not supported by evidence. The most likely cause of the Veteran's OSA was a weight gain of 25 kilograms since separation from service. The examiner also opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of a service-connected disability and that, regardless of an established baseline, the Veteran's OSA was not at least as likely as not aggravated beyond its natural progression by a service connected condition. The examiner explained that the conditions of OSA and PTSD are not medically related. The OSA is a separate entity entirely from the PTSD and unrelated to it. A thorough review of medical literature did not demonstrate a causal relationship. A nexus had not been established. The examiner then cited a medical review journal that discussed the lack of a relationship between PTSD and OSA. The examiner concluded by stating that, because of the lack of scientific evidence supporting a causal role for PTSD in the development of sleep apnea, it was less likely than not that the Veteran's OSA was due to PTSD. The conditions were medically unrelated, and no aggravation is plausible. In support of the claim, in addition to several written statements, the Veteran testified before the undersigned Veterans Law Judge during a March 2013 Board hearing. During that hearing, the Veteran reasserted a belief that his OSA was caused by PTSD. The only evidence that provides a link between the Veteran's service and diagnosed obstructive sleep apnea comes from the Veteran and the Appellant. The Board acknowledges the Veteran's assertions that OSA is the result of a service-connected disability. However, the Board finds that the Veteran and Appellant, as a lay persons without the appropriate medical training and expertise in diagnosing and treating sleep disabilities, are not competent to provide a probative opinion as to whether OSA was either caused by or aggravated beyond the natural progression by any incident of active service, or by any service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran and the Appellant have not been shown to possess the adequate medical knowledge, education, or training, to competently opine to the diagnosis or etiology of any sleep disability. While they may state that the Veteran experienced fatigue or snored, they are not competent to provide a diagnosis of a specific disability, or to opine as to the etiology of any disability as those issues fall outside the realm of common knowledge of laypersons. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education, and experience in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the March 2021 VA examiner opinion to be competent, credible, and persuasive. The VA examiner opined that it was less likely than not that the claimed OSA was related to an incident of service or service-connected disability. The Board finds the VA examiner's opinion to be more probative than the lay statements of record. The opinion of the VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability. Accordingly, the VA examiner opinion is found to carry significant weight and to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the lay statements could be found to be competent and credible, the Board finds that they are outweighed by the March 2021 VA examination opinion because of the examiner's medical training. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that obstructive sleep apnea was incurred in or is related to the Veteran's honorable active service or a service-connected disability as the most persuasive evidence of record does not support that contention. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, as the preponderance of the evidence is against the claim of entitlement to service connection for sleep apnea disability, the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. 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 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is rated 60 percent or more; or if there are two or more service-connected disabilities at least one is rated 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities; or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); multiple injuries incurred in action; or multiple disabilities incurred as prisoner of war. A claim for a total disability rating based upon individual unemployability, presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to his passing in September 2019, the Veteran met the schedular criteria for consideration of the assignment of TDIU effective February 18, 2011 as he was service-connected for at least one disability rated 70 percent disabling. The Board's consideration turns to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. The Board finds that the evidence of record does not indicate that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, alone or in combination. The record indicates that the Veteran achieved a bachelor's degree in history and a master's degree in industrial management in 1989. The Veteran last worked as a Human Resources Manager from January 1990 to August 2011, when he was fired for misconduct. A review of the treatment records does not show any indication that the service-connected disabilities caused unemployability. On February 18, 2011, the Veteran was only service-connected for PTSD rated 70 percent. At a March 2011 VA examination, the Veteran's psychiatric disability was found to result in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD and mental condition signs and symptoms, but generally satisfactory functioning (routine behavior, self-care, and conversation normal). At a November 2011 VA examination, the Veteran's psychiatric condition was found to result in occupational and social impairment with reduced reliability and productivity. During the examination, the examiner stated a medical opinion that, although the Veteran had occupational impairment and was recently fired from his most recent job, he was employable. At a July 2013 VA examination, the Veteran's psychiatric condition was found to result in occupational and social impairment with reduced reliability and productivity. The examiner stated that a medical opinion that the Veteran had the mental capacity to secure and sustain gainful employment under modified conditions. The examiner stated that the Veteran had both significant social and occupational impairment but, nevertheless, was mentally capable of performing the mental acts required by employment. Effective April 13, 2015, the Veteran also became service-connected for cervical spondylosis, rated 10 percent; hypertension, rated 0 percent; and erectile dysfunction, rated 0 percent. At an April 2015 VA male reproductive examination, the Veteran's condition was found to have no impact on his ability to work. At an October 2017 VA examination, the Veteran's psychiatric condition was found to result in 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. During the examination, the examiner stated that the Veteran's panic attacks were his main limiting factors in the workplace. The Veteran had no cognitive disorder and held a master's degree. The Veteran was suitable for solitary work or with small numbers of people but would need a flexible supervisor and the ability to take breaks if he started to get panicky. The examiner also stated that solitary surroundings were needed, and the Veteran had to have his own space. At a March 2018 VA hypertension examination, the Veteran's hypertension was found to impact the ability to work in that the Veteran would need access to his medications. At a March 2018 VA neck examination, the Veteran's cervical spondylosis was found to impact the Veteran's ability to perform sustained overhead work and wear heavy or bulky headgear. In support of the claim, in addition to several written statements, the Veteran testified before the undersigned Veterans Law Judge during a March 2013 Board hearing. During that hearing, the Veteran discussed his work history, why he was fired from his previous employer, and how he felt that the service-connected disabilities made him unemployable. After reviewing the entire record, the Board concludes that entitlement to TDIU is not warranted. The most probative evidence of record shows that, solely considering the service-connected disabilities, the Veteran was more likely able to obtain gainful employment, if that employment did not require interactions with large numbers of people. The Board finds that the evidence does not show anything out of the ordinary, or not average, in the Veteran's situation as a result of the service-connected disabilities. While the Veteran may have been unable to perform work such as certain types of manual labor or highly interactive roles, the weight of the probative evidence of record does not indicate that he was unable to perform some type of substantially gainful employment in a solitary setting, such as office work, which was consistent with his education and experience. Overall, in terms of service-connected disabilities, the Veteran was consistently found to be capable of performing the mental acts required by employment. The Veteran may have struggled to work in larger groups requiring a lot of interaction and collaboration with co-workers or the general public. Otherwise, the service-connected disabilities have not been shown to cause significant occupational impairment that would result in unemployability. All VA examinations indicate that the service-connected disabilities only had moderate effects on the Veteran's ability to work. Overall, the record strongly suggests that the service-connected disabilities, alone, did not preclude the Veteran from work that did not require a large amount of social interaction. In arriving at this decision, the Board has considered the Veteran's background. Considering the overall disability picture, and the Veteran's history of employment, the Board finds that the preponderance of the evidence shows that the Veteran was not unemployable solely due to service-connected disabilities. The Board acknowledges that the Veteran had an extensive medical history prior to passing and some severe nonservice-connected medical diagnoses. However, the impact of the nonservice-connected disabilities may not be considered under the criteria for TDIU, which only considers service-connected disabilities. As the record currently stands, the only disabilities that the Board can currently consider in determining eligibility for TDIU are PTSD, cervical spondylosis, hypertension, and erectile dysfunction. The Board finds that the record does not show that the service-connected disabilities prevented the Veteran from obtaining or maintaining employment at any time during the appeal period. In making that determination, the Board is not refuting the Veteran's noted physical limitations or his own contentions that the service-connected disabilities affected the ability to work. However, the rating schedule adequately contemplated the symptoms at issue. The Board notes that the Veteran and Appellant have not provided any medical or vocational expert evidence which supports a finding of an inability to maintain substantially gainful employment as a result of the service-connected disabilities. While the Veteran was shown to not be working during the course of this appeal, it was not shown that he was precluded from working by the service-connected disabilities. (Continued on the next page) The Board is appreciative of the Veteran's honorable service to our Country. However, the Board finds that the preponderance of the evidence weighs against the claim of entitlement to TDIU. Accordingly, because the preponderance of the evidence is against the claim, the claim for TDIU must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.