Citation Nr: 21042667 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 20-16 786 DATE: July 13, 2021 ORDER Entitlement to an initial rating greater than 50 percent for major depressive disorder is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU), to include extraschedular referral, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's depressive disorder more nearly approximated the criteria for a 50 percent rating causing no more than occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities do not preclude the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent have not been met for major depressive disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434 (2019). 2. The criteria for entitlement to a TDIU, to include extraschedular referral, have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board denied the Veteran's claim for an initial rating in excess of 50 percent for major depressive disorder and remanded the claim for TDIU. However, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In doing so, the Veteran contended that the Board erred when it issued its decision while the Veteran's attorney's Privacy Act request was pending. As a result, the parties entered into a Joint Motion for Partial Remand and agreed to vacate that portion of the Board's decision that denied an increased rating for depression. As the matters have been returned to the Board for further appellate review, the Board will proceed with adjudication of the claims. 1. Entitlement to an initial rating greater than 50 percent for major depressive disorder. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's depressive disorder has been assigned a 50 percent rating and evaluated under Diagnostic Code 9434 which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the General Rating Formula, a 50 percent rating is assigned when a veteran's PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. The maximum schedular rating of 100 percent is warranted when there is 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background A review of the evidence shows the Veteran received a mental disorders examination in April 2003 for depression, associated with his service-connected paresthesia, left side of tongue. In the examination, the Veteran reported having no formal psychiatric treatment; however, he indicated that he was prescribed psychotropic medications by his primary care physician which he noted was helpful with limiting his irritability, improving his stamina, and helping him to sleep. He also reported being extremely depressed with loss of motivation, anhedonia, fatigue, lack of energy, difficulty sleeping, irritability, great sadness, extreme loss of libido and an overwhelming sense of hopelessness and helplessness about his future. The Veteran indicated that he was socially withdrawn and does not interact with his wife and kids as much as he used to and described himself as having become an extremely unhappy, frustrated, angry individual who feels no one really understands what he is going through. The Veteran further reported that his inability to escape the odd feelings in his tongue and on the side of his face and head interfere with his ability to function at work because it impairs his concentration and then he makes errors. He reported that it interferes with his family life with the loss of libido, and also his tendency to not want to be close to people because he is completely obsessed with his facial sensations and lack thereof. Mental status examination showed the Veteran was alert and oriented in all three spheres. His conversation was somewhat subdued, and he seemed preoccupied, on edge, and very sad without much affect. The Veteran appeared to be depressed with an almost completely flattened affect in an overall pessimistic and fatalistic view of the world. Affect was noted as virtually colorless without much responsivity. The examiner diagnosed the Veteran with major depressive disorder, recurrent chronic pain syndrome. In December 2003, the Veteran received an initial mental health evaluation with VA where he reported having a history of anxiety and depression with increasing symptoms. He reported seeking outpatient psychiatric treatment approximately three years ago with his community psychiatrist and being given medications. The Veteran further reported that he has been married for 23 years and has two children. He stated that he has been experiencing recent marital conflict and worries about one child who has a seizure disorder. The Veteran endorsed symptoms of having a depressed mood, episodes of irritability, tearfulness, loss of interest in activities such as exercise and socializing, decrease sexual libido, impaired attention and concentration due to worries, and variable sleep disturbance. He denied suicidal/homicidal ideation, and reported a history of anxiety, rumination, and worry about many aspects of his life such as his children and work performance. The Veteran also reported a history of chronic pain on the left side of his face due to a dental procedure while in the military resulting in nerve damage. In an April 2008 mental disorders examination, the Veteran reported being married for 27 years, but that he has been currently separated for 8 weeks. He reported the separation was due to him being depressed and losing interest and that the marriage had been deteriorating over time, but he just became aware of it when his wife left. The Veteran reported not having a lot of interests and that pain and sleep impairment are his major problems. He reported that he lacks concentration and loss of interest in activities and people. He also reported having irritability and a hard time socializing as he feels like a burden. Mental status examination showed grooming and hygiene appeared to be good, but the Veteran's clothing was wrinkled and somewhat disheveled. The Veteran presented as somewhat lethargic and listless and he was withdrawn and detached throughout most of the interview. His mood appeared somewhat dysphoric with flattened affect. The Veteran reported that his mood is depressed, irritable, anxious, and nervous at times. He indicated his sleep has been generally erratic and reports that he averages four hours of sleep per night. The Veteran denied suicidal and homicidal ideation, no hallucinations, or delusions. Thought processes appeared to be logical with no evidence of cognitive dysfunction. There were no dissociative symptoms reported; however, the Veteran reported obsessive behaviors of double-checking things and checking the lights sometimes, maybe twice before leaving. In terms of socializing, the Veteran reported that he has been going to a club with his brother to have a beer, and that he has friends at work, but he does not go out with them. He reported that he goes to church and will go out for a walk sometimes. In his May 2015 mental disorders examination, the Veteran was diagnosed with major depressive disorder, recurrent, mild. The examiner noted that the Veteran's social functioning has not changed since his last exam in December 2010. The Veteran continues to be divorced with no subsequent romantic involvement. He has an excellent relationship with his two daughters. He communicates with his mother twice a week and socializes with his brothers who live locally several times per week. The Veteran attends church several times a month, and regularly socializes with a friend who runs a used car dealership nearby. The Veteran is also a member of the Bridgeport Sportsman club and the DAV. Occupationally, the Veteran reported retiring approximately two years after his last exam, from the United States Postal Service (USPS) with 30 years of service. Prior to retiring, he experienced mild work-related impairment secondary to psychiatric symptoms. He reported that during his last two years, he received three written letters of warning and approximately five verbal warnings due to poor productivity and efficiency as he was making recurrent errors scanning packages and occasional tardiness. The examiner noted his work concerns appear to be related to chronic sleep disturbance and difficulty concentrating. With regard to treatment, the Veteran reported he continues to receive prescribed medication management. He sees providers approximately once every 2 to 4 months and there have been no significant medication changes since his last exam. The examiner noted that the Veteran continues to experience symptoms including intermittently depressed mood, mild anhedonia, lethargy, fatigue, difficulty sleeping, difficulty concentrating, occasional feelings of worthlessness, and occasional feelings of hopelessness. The Veteran denied other psychiatric symptoms including suicidal/homicidal ideation. The examiner concluded that the Veteran's symptoms cause occupational and social impairment due to mild or transient symptoms, and that the Veteran has not experienced an increase or decrease in the severity of psychiatric symptoms since his last exam in December 2010. The examiner further noted that the Veteran continues to receive psychiatric treatment at a similar frequency and intensity as prior to the last exam, and he remains employable from a psychiatric perspective. In his August 2016 mental disorders exam, the Veteran was diagnosed with major depressive disorder in partial remission. Socially, the Veteran reported that he continues to live with one of his daughters, and the other is close by. He is close to a neighbor and they work on the Veteran's house, and he socializes with another friend who has a towing business. The Veteran indicated he will sometimes stay in his room for 2 or 3 days, but he makes an effort to get out as much as he can to improve his mood. He maintains a garden, enjoys walking short distances, biking, and fishing, and goes to the movies. He also maintains a good relationship with his brother and mother. Occupationally, the Veteran reported retiring in 2013. He reported that he has not worked since his retirement, but he will occasionally help his friend with the towing/car sales and works on rehabbing his home. He indicated he began to have difficulties in his USPS job and reported falling asleep twice on the job. With regard to treatment, the Veteran reported that he meets with his VA psychiatrist once every 3 months and stated it is going very well and he feels "more even." He reported current symptoms of sleep difficulty 4 to 5 nights a week, and that he experiences bad pain due to neuralgia. He has a day or so when he feels depressed and stays in bed which happens every couple of weeks. He also reported feeling hopeless sometimes and that he has difficulty concentrating. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and mild concentration difficulty, present in only a few tasks. The examiner further noted a review of records shows the Veteran has been doing well on his current medication regimen. The examiner further noted the Veteran's depression is in partial remission, meaning he still experiences symptoms, but they do not meet the full criteria for a major depressive episode at present. The examiner concluded the Veteran's symptoms cause occupational and social impairment due to mild or transient symptoms. Analysis After considering the above and remaining evidence, the Board finds an increased rating is not warranted. The Board notes that the Veteran's depressive disorder has been associated with his service-connected left side facial paresthesias; however, the evidence shows that the Veteran's depression symptoms have been multifactorial, and his psychiatric disorder has not been shown to cause no more than occupational and social impairment with reduced reliability and productivity for the entire appeal period. Initially, the Board notes that in an April 2021 written correspondence, the Veteran's attorney contended that a higher rating is warranted since the Veteran's April 2003 VA examination report noted "extreme" depression. The Board notes, however, that this was based on the Veteran's self-report. As noted above, the Veteran reported symptoms of extreme depression, with loss of motivation, anhedonia, fatigue, lack of energy, difficulty sleeping, irritability, great sadness, extreme loss of libido and an overwhelming sense of hopelessness and helplessness. The examiner also noted the Veteran appeared to be depressed with an almost completely flattened affect in an overall pessimistic and fatalistic view of this world. While these symptoms can be described as severe, the examiner found that the Veteran's depressive disorder was unlikely secondary to a medical condition. Additionally, in his December 2003 initial evaluation with VA, the Veteran reported having a chronic history of anxiety, rumination, and worry about many aspects of his life such as his children and work performance. Moreover, the Veteran reported experiencing recent marital conflict and that he worries about one child who has a seizure disorder. He indicated his facial pain has been increasing in severity and noted it was likely contributing to the exacerbation of anxiety and depression, which clearly suggests the Veteran's left side facial paresthesias was not the sole cause of his psychiatric symptoms. The attorney also contended that the Veteran's symptoms had become so debilitating that the Veteran was offered and accepted an early retirement from the USPS. However, this assertion is not supported by the evidence. Contrary to the attorney's contention, the evidence does not show that the Veteran was offered an early retirement due to his psychiatric symptoms. Rather, the evidence shows that the Veteran maintained employment at the USPS for 30 years, and treatment records from April and September 2012 show that the Veteran was offered an early retirement due to a government buyout of multiple employees. The Board notes that in his April 2003 examination, the Veteran reported that the odd feelings in his tongue and on the side of his face and head interfere with his ability to function at work because it impairs his concentration and then he makes errors. However, in his April 2008 VA mental disorders examination, the Veteran reported that he has never lost time from work due to psychiatric or psychological problems. Similarly, in his August 2016 nerves exam, the Veteran denied any limitations with performing physical or sedentary work related to his paresthesia. Moreover, in his August 2016 mental health examination, the Veteran reported having difficulties in the last two years prior to retirement as he fell asleep on the job due to fatigue. The Board observes a June 2004 mental health visit where the Veteran complained of severe left facial pain, difficulty falling asleep, and early morning awakening. As a result, mirtazapine was increased to help with sleep. The examiner diagnosed the Veteran with mood disorder, secondary to chronic pain syndrome, and the examiner assigned a Global Assessment of Functioning (GAF) score of 40, indicative of severe impairment. Likewise, in a June 2005 mental health visit, a GAF score of 40 was noted. The Board notes, however, that GAF scores are not considered reliable evidence of severity. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Thus, the Board has not given them much probative weight when considered against the evidence of symptoms and treatment of record. Despite the assigned GAF score, the evidence does not show severe occupational and social impairment or that the Veteran's symptoms were of the severity, frequency, or duration to warrant a higher rating. In addition to the above evidence, the Board notes that during his June 2004 visit, the Veteran reported he exercises 2 to 3 times a week and is getting along okay with his wife. He also maintained employment with no evidence of significant occupational impairment. Additionally, in his June 2005 visit, although the examiner assigned a GAF score of 40, the examiner also described the Veteran's condition as "moderate" and "improved." Moreover, it was noted that the Veteran was slightly depressed and slightly anxious, and the Veteran reported sleeping better and walking more often. He also stated that he takes his 12-year-old child to soccer and softball games and is getting along well with his wife and children. The Board also notes that in a May 2004 mental health visit, the Veteran reported a decrease in symptoms as he reported having occasional anxiety and panicking, much less severe than they used to be, and that he is doing well with his counseling. He also reported occasional mood swings and irritability. Similarly, in a November 2004 primary care visit, the Veteran reported having occasional anxiety and panicky feelings, and occasional mood swings and irritability. Moreover, the Veteran indicated that he was doing much better, and he denied suicidal/homicidal ideation. Conversely, in a July 2005 neurology note, the Veteran reported increased facial pain, and always being tearful. He reported he feels lethargic, and does not enjoy anything in his life. He further reported that his sleep was poor and worries that his life will be miserable forever. Moreover, the examiner noted the Veteran looked severely depressed. However, these symptoms are contrary to the Veteran's report in his subsequent September 2005 mental health visit where he complained of mild anxiety and reported getting along okay with his wife and children. He noted that the medications have helped his anxiety and depression, and that his mood is now calm. He further reported walking once or twice a week for exercise. In his November 2005 primary care visit, he reiterated that he is doing better and noted that he only has some depressed feelings. Additionally, in a July 2006 mental health note, the Veteran reported his mood has improved, and he is feeling much better on the antidepressant medication. He further reported improved sleep and he enjoys walking once or twice a week. He indicated he plans to go on a camping trip to West Virginia next weekend with his wife and children, and that his mood is now stable. Further, in a June 2007 mental health note, the Veteran reported having a good Christmas. He was still working full-time, sleeping better, and getting along better with his wife and children. He reported that he was less anxious and less depressed, and that his mood is improved. Furthermore, in his April 2008 VA mental disorders examination, the Veteran reported that he has lost interest in activities and people, and has a hard time socializing; however, he reported that he goes out with his brother to a club; he has a couple of work friends; he goes to church, and takes his daughter to and from sports. The Board observes that in the Veteran's attorney's April 2021 correspondence, the attorney referenced a May 2008 VA examination and contended that the Veteran reported that his depressive symptoms led to the end of his marriage, and that the examiner noted the Veteran neglected his appearance and hygiene. The Board notes that while the attorney referenced a May 2008 VA examination, the evidence appears to show that this may have been a clerical error as the examination occurred in April 2008. Nevertheless, these findings do not support a higher rating. First, the Board notes that the April 2008 examination was conducted by a three-member panel, including one licensed psychologist and two board certified psychiatrists. To that end, the examination does not show that the Veteran neglected his appearance and hygiene. Instead, the examiners noted that the Veteran's clothing appeared to be wrinkled and disheveled. The examiners further noted that the Veteran's "dress was casual and generally appropriate to setting," and that "grooming and hygiene appeared to be adequate." Additionally, all other evidence of record shows that the Veteran's appearance and/or grooming and hygiene were noted as adequate, and there is no other evidence that suggests otherwise. With regard to the assertion that the Veteran's depression led to the dissolution of his marriage, the Board does not refute that this may be true. However, as explained above, the evidence shows that other factors contributed to the Veteran's depression aside from his left side facial paresthesias. In fact, the April 2008 examiners noted that the Veteran appears to have had financial difficulties for several years and it appears, given his report, that the onset of some of his anxiety and treatment occurred at the same time as his financial difficulties. In addition, the examiners found that the Veteran may have overreported his symptoms. The examiners noted that the Veteran's Beck Depression screening showed a score equal to moderate to severe depression; however, the examiners found that the Veteran's results seem to be overreported as the results were inconsistent with the Veteran's ability to continue to work, socialize with others, and function regularly on a daily basis without impairment. The examiners concluded that the Veteran does not currently meet the criteria for depression, but that his symptoms are most consistent with an adjustment disorder with depressed mood as the Veteran reported several current stressors including financial difficulties, recent separation from his wife, as well as, problems with sexual functioning. The examiners further found that the Veteran continues to function at work where he has worked for 27 years, and clearly reports no lost time from work or difficulties with work associated with psychiatric or psychological problems. Consistent with this finding is the Veteran's August 2016 VA examination in which the examiner found that the Veteran's depression screen was more elevated than would be expected given his report of his symptoms as well as review of his records. At that time, the Veteran's Beck Depression Inventory showed severe symptoms; however, the examiner found that the Veteran's symptoms were in partial remission. Moreover, VA treatment records show the Veteran's depression had been in remission since April 2014. Other evidence that shows the Veteran's psychiatric symptoms did not cause severe impairment include the Veteran's December 2010 mental disorders examination. Here, the examiner found the Veteran was suffering from a depressive disorder rather than an adjustment disorder with depressed mood, given the reported duration of the depressive symptoms. However, the examiner continued to find slight impairment and noted that despite some depressed mood and sleep disturbance, the Veteran continues to function at his job and have satisfying personal relationships, indicating little actual impairment. Additionally, in his October 2012 primary care visit, the Veteran denied a worsening of depression symptoms. A September 2013 mental health note showed the Veteran enjoyed working part-time at his friend's car shop. Moreover, the examiners in his May 2015, August 2016, and January 2021 mental disorders examinations all found that the Veteran's symptoms cause occupational and social impairment due to mild or transient symptoms, which is indicative of a 10 percent rating. Furthermore, the Veteran was active socially as he maintained a good relationship with his daughters, mother, and his brother. He attended church regularly, socialized with his friend, and was a member of the Bridgeport Sportsman club and the DAV. He also reported walking regularly, biking, fishing, and going to the movies. Lastly, VA treatment records show that the Veteran's depression was noted to be in remission from April 2014 and onward. Therefore, for the reasons outlined above, the Board finds the preponderance of evidence is against the claim as the evidence shows the Veteran's depressive symptoms did not cause occupational and social impairment with deficiencies in most areas, nor total social and occupational impairment. In addition, although the evidence shows the Veteran has experienced depression since 2002 until his remission in 2014, his depression has also been attributed to circumstances other than his service-connected left side facial paresthesias. Further, even though the Veteran reported severe symptoms at times, and he was assigned GAF scores indicative of severe symptoms, these symptoms were not of the severity, frequency, or duration to warrant a higher rating. Moreover, there is probative evidence that suggests the Veteran may have overreported his symptoms during the entire appeal period. As a result, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for a rating greater than 50 percent for depressive disorder is denied. 2. Entitlement to a TDIU. Total disability ratings for compensation based on individual unemployability 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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for the following disabilities: major depressive disorder, associated with paresthesia, left side of tongue with hypesthesia, rated at 50 percent from March 6, 2002; paresthesias, left side of tongue with hypesthesia, rated at 10 percent from June 2, 1979; loss of sense of smell, rated at 10 percent from January 6, 2004; glossopharyngeal nerve paresthesia, rated at 10 percent from July 22, 2016; and unilateral taste disturbance, left side of tongue, associated with paresthesia, rated as noncompensable. The Veteran has a combined disability rating of 60 percent from March 6, 2002. In the Veteran's case, the rating criteria for consideration of a TDIU under 38 C.F.R. § 4.16 (a) are not met. Although he has one disability ratable at 40 percent or more, his combined disability is only at 60 percent disabling. Nevertheless, the law provides that where these percentage requirements are not met, entitlement to a total rating based on individual unemployability on an extraschedular basis may be considered when the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). Since, the Board cannot decide extraschedular TDIU claims in the first instance, the Board must specifically adjudicate whether to refer the case for consideration of extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Barringer v. Peake, 22 Vet. App. 242 (2008). Extraschedular referral is appropriate when the evidence presents such an exceptional or unusual disability picture that the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If such an exceptional or unusual disability picture exists, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321 (b)(1) (2017). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 118-19. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against referring the Veteran's claim for a TDIU on an extraschedular basis. At the outset, the Board notes that in his VA Form 21-8940, Application for TDIU, the Veteran reported that his last date of employment from the USPS was in January 2013. He reported receiving wages of approximately $54,000.00 for the year 2012. Therefore, as the Veteran was gainfully employed in an occupation that provided an annual income over the poverty level threshold, the Veteran would not qualify for a TDIU for this period. With regard to the period from January 2013, the Board has reviewed the evidence of record and finds that a TDIU is not warranted. Here, while the Veteran reported that he was last employed in January 2013, a September 2013 mental health note shows the Veteran was working as he reported he enjoyed working part-time at his friend's car shop. Even if his part-time employment was not considered "gainful employment," the Veteran's depressive disorder would not have precluded employment as he was found to be in remission beginning in April 2014 and onward. This finding is consistent with the VA examiners in his May 2015, August 2016, and January 2021 mental disorders examinations whom all found that the Veteran's psychiatric disorder causes occupational and social impairment due to mild or transient symptoms. The Board also notes that in his August 2016 nerves exam, the Veteran denied any limitations with performing physical or sedentary work related to his paresthesia, and the examiner found the condition does not impact the Veteran's ability to obtain gainful employment. Additionally, in his December 2020 nerves examination, the Veteran reported he retired early due to poor sleep, insomnia, and falling asleep at work. The examiner indicated that the Veteran's left nerve damage may alter his ability to sleep soundly but aside from that, it does not impact his occupational and employment activities. The Board has also considered an April 2021 private vocational opinion which found that the Veteran's service-connected disabilities preclude the Veteran from securing and following substantial gainful employment. However, the Board finds the opinion offers low probative value due to its inconsistencies with the remaining evidence of record. For example, the vocational examiner noted that, with regard to the Veteran's depressive disorder, the Veteran reported since at least 2013 he has preferred to isolate and limit his social interactions. He reported he isolates for the majority of the day and prefers to be alone, and that he lies in bed for the majority of the day due to his depressed mood. However, in his August 2016 mental disorders examination, the Veteran reported he only has a day or so when he feels depressed and stays in bed which happens every couple of weeks. Additionally, the evidence shows the Veteran was otherwise quite active. As noted above, the Veteran reported that he attended church regularly, socialized with his friend, and was a member of the Bridgeport Sportsman club and the DAV. He also worked part-time in his friend's shop, and reported walking regularly, biking, fishing, and going to the movies. Moreover, the Veteran maintained a good relationship with his daughters, mother, and his brother; and he took his daughter to her soccer and softball games. The vocational report also noted that the Veteran had to have reminders from his daughters to shave and to get his hair cut due to poor personal hygiene maintenance; however, the Veteran did not report this impairment in any of his medical visits or VA examinations. In addition, as explained above, the only evidence relative to the Veteran's physical appearance was in his April 2008 mental disorders examination when the Veteran's clothing was noted as disheveled and wrinkled. However, the examiner found that his grooming and hygiene appeared to be adequate. Further, the vocational report indicated the Veteran was offered and accepted an early retirement due to the increased severity of his service-connected psychiatric limitations; however, this assertion is inconsistent with the record. As mentioned previously, the Veteran's early retirement was the result of a government buyout, which was unrelated to his psychiatric disorder. Additionally, in his April 2008 VA mental disorders examination, the Veteran reported that he has never lost time from work due to psychiatric or psychological problems. Moreover, in his May 2015 mental disorders exam, the Veteran reported experiencing mild work-related impairment due to his psychiatric symptoms. He explained that during his last two years, he received three written letters of warning and approximately five verbal warnings due to poor productivity and efficiency as he was making recurrent errors scanning packages and occasional tardiness. While the Veteran may have experienced occupational impairment, his impairment was mild as the examiner noted that the Veteran's work concerns appear to be related to chronic sleep disturbance and difficulty concentrating, and the Veteran denied other work-related impairment prior to retiring. Furthermore, the Veteran retired from the USPS with 30 years of service. For the foregoing reasons, the Board finds the preponderance of the evidence weighs against finding the Veteran's service-connected disabilities render the Veteran unemployable. Accordingly, the Board concludes that referral to the Director of the Compensation Service for consideration of entitlement to an extraschedular TDIU is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.