Citation Nr: 22016161 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-36 300 DATE: March 21, 2022 ORDER Entitlement to a rating greater than 50 percent for service-connected unspecified depressive disorder (claimed as PTSD to include depression and anxiety) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disease or injury is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's unspecified depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating greater than 50 percent for service-connected unspecified depressive disorder (claimed as PTSD to include depression and anxiety) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.126, 4.130, Diagnostic Code (DC) 9435 (2020-2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Navy from February 1969 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability evaluations 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 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate 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, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Entitlement to a rating greater than 50 percent for service-connected unspecified depressive disorder (claimed as PTSD to include depression and anxiety). The Veteran contends that he is entitled to a higher disability rating for his service connected unspecified depressive disorder (claimed as PTSD to include depression and anxiety). The Veteran is currently service-connected for unspecified depressive disorder (claimed as PTSD to include depression and anxiety) rated at 50 percent effective date August 28, 2017, under diagnostic code (DC) 9435. The Board recognizes that the Veteran through his representative argued that the Veteran should be evaluated for post-traumatic stress disorder (PTSD) due to his military sexual trauma (MST). However this issue for service connection for PTSD is not before the Board, therefore it will not be addressed. The Veteran and his representative may file a claim regarding PTSD due to MST with the AOJ. Nevertheless, the Board will consider all psychiatric symptomatology in ascertaining whether an increased rating is warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating based on all the 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In other words, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). A 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: 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; and memory loss for names of closes relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9435. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA no longer recognizes Global Assessment of Functioning (GAF) scores as an effective method of evaluating the severity of psychiatric disabilities. See 38 C.F.R. § 4.125 (incorporating by reference the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)). Therefore, the Board will not rely on any GAF scores in adjudicating the present claim. See Golden v. Shulkin, 29 Vet. App. 221, 224-26 (2018). Medical treatment records reflect that the Veteran was in private psychiatric treatment. The records indicate that the Veteran endorsed symptoms of depressed mood, nightmares, anxiety, panic attacks that occur weekly or less often, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and a suicidal ideation. He claimed that he "considered suicide because he could not maintain a relationship, and nothing was going well." See January 2015 C&P exam. However the record reports that the Veteran has consistently denied any thought of suicide attempts or self-harm previous or subsequent to the incident. Additionally, the record shows that the Veteran has indicated that he is easily irritated, but with situation which most people would feel angry (e.g. frustration with traffic, rudeness as the grocery store). He indicated that he is able to control his behavior without yelling or getting involved in physical altercations. He reported feeling guilty of how he was discharged from the Navy, particularly he had disappointed his father. The Veteran endorsed trouble with focus, indicating that his mind wanders off topic when he is trying to converse with others, that he cannot get things done, he has difficulty interacting with other people and that he can only relate to certain people, he has to make lists of things in order to remember people's names and he does not ask people for help due to lack of trust in others; he also reported experiencing flashbacks. There are no reports of him being hypervigilance or having hallucinations. The medical records generally reflect that the Veteran reported having generally conventional relationships with a few select peers and his extended family and a long history of having adequate work with fair-to-good working relationships with his peers and supervisors. The medical records generally reflect that the Veteran reported overall improvement in his symptoms with his medications. The treatment records throughout the appeal period also generally reflect that the Veteran was well nourished, fairly clean, with fair to good hygiene, he was able to perform multiplication indicating a fairly good ability to concentrate, he was alert and well oriented, he had good eye contact and his speech was within normal limits. His attitude was cooperative. No inappropriate behavior was noted. His thought processes were generally described as linear, logical and goal-directed, coherent, organized without delusions. Judgment and insight were generally intact and good. Although complaints of memory problems were reported by the Veteran, no significant memory impairment was noted. Treatment records indicate that the Veteran has worked for twenty years at two different companies retiring from his last company in May 2012. Currently he is a Deacon at his church and mentor at an elementary school through his church. However, he stated that he backed off his duties as a Deacon because of issues with concentration and attention at church. Turning to the relevant evidence of record, in an August 2012 medical treatment record, Dr. J.D.C., Ph.D., a licensed clinical psychologist, reported the Veteran's condition and history during his examination as follows: Veteran presents as an alert, well, dressed, well-groomed male. Veteran appears to have a support system within his church and participates in church activities and that this gives the Veteran something to concentrate and focus on and serves to keep him "on track". The examiner observed that the Veteran had no delusions or hallucinations, no mannerisms of speech or behavior were noted. The Veteran denied having any suicidal intent at the time. The examiner reiterated that being involved in his church makes a great difference in the Veteran's current behavior and he feels more confident about himself. However, Dr. J.D.C., noted that the Veteran continues to have nightmares and intrusive thoughts of the events that occurred while was in the Navy. Dr. J.D.C., summarized the Veteran's condition as follows: the Veteran suffers from a dysthymic disorder as well as continuing to perseverate over his situation while serving on the Navy, which at the time was quite traumatic for him. He continues to have intrusive thoughts and nightmares of the situation. He was subsequently exposed to trauma when in the care of the Oklahoma Department of Corrections on two different occasions. He struggles to continue to make amends to others. He has always been a hard worker and has provided for his family. He continues to find solace within his church, which has given him an opportunity to make amends by assisting others and finding some solitude within his church environment. In a September 2015 Compensation and Pension Record Interchange (CAPRI), the Veteran's examination records reported that he had no suicidal or homicidal attempts or ideation and the Veteran stated that "you can't worship God if you're suicidal or depressed." See September 2015 CAPRI. In a June 2016 CAPRI, the Veteran's examination records reported that the Veteran denied suicidal ideation stating, "I don't have any thoughts of killing myself." See June 2016 CAPRI. The VA examiner reported the following summation of the examination as follow: "currently, the Veteran indicated having generally conventional relationships with a few select peers and his extended family. He reported a long history of having adequate work, with fair-to-good working relationships with his peers and supervisors. He did not indicate having any problems that require substance abuse treatment at this time. He indicated his intent to continue to use mental health treatment resources in the future." Id. A June 2016 VA examination notes that the Veteran denied having any issues with getting along with people he is close to, maintaining his friendships, or getting along with people he does not know. He reported that he continues to keep in contact with his younger siblings. He reported that he lives alone but was married to the same woman twice, but she is deceased. There are two stepchildren that he has no relationship with. The examiner noted that the Veteran was independently mobile and denied having any problems with walking or being able to stand for periods of time or that the Veteran had any problems caring for his basic physical needs. The Veteran stated that he completes all of his own household chores, including cooking, cleaning, and running errands. He denied having any significant problems completing the tasks around his home. In his free time, the Veteran described how he watches television, sometimes going to the fitness center, and regularly attends a number of church functions. As a Deacon in his church, attending regular administrative meetings in addition to worship services, and taking food to shut-ins on a regular basis. The Veteran described being an "average" student growing up, getting along "good" with teachers and peers. He denied having any significant disciplinary problems in school. The Veteran described taking auto body repair classes in school, and upon graduating, moving to Okmulgee to get a 2-year degree through OSU-Tech. He reported he then moved to Wichita, Kansas, where his brother helped him get a job doing sheet metal for Boeing, before being laid off. He reported that he enlisted in the Navy and after his discharged he worked a couple of jobs, then from 1970 to 1990 he worked for FS tire plant, he left FS and went to MOKC for two years, after that he worked for JC from 1992 to 2012 until his retirement. The examination indicates that the Veteran had symptoms of depressed mood, disturbances of motivation and mood and negative to suicidal ideation. The examiner observed that the Veteran was casually dressed, with good hygiene. The VA examiner reported that the Veteran denied ever being referred for mental health services prior to, or during his military service. Documentation indicated the Veteran reported experiencing nightmares at the time of his separation from the military but did not meet the full criteria for the diagnosis of any mental health disorder at this time. The Veteran currently is prescribed medications for depression and has been seeing a psychiatrist through the Oklahoma City VAMC every 3 months, since about 2014. He participated in classes on depression in the past but is not participating in any mental health counseling at this time. The Veteran described how he loses his concentration in the course of conversation with family and people at church. The Veteran indicated having an interest in learning new things, which he noted was a change from his attitude towards learning new things in the course of work; he described learning to use a computer to pay his bills online. The Veteran reported having nightmares at the time of his separation from the military. He described having recurring feelings of guilt and depressed mood, throughout his life, following his separation from military service. Veteran did not report to any suicidal ideation at the exam. Based on the foregoing, the examiner opined that the Veteran has 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, or symptoms controlled by medication. A November 2017 VA examination notes that the Veteran appears to have developed significant anxiety secondary to concerns regarding his memory, concentration, and word finding. He reported that he has become more socially withdrawn as a result of these cognitive symptoms, which he reported has developed in the last year and since the last exam. The examination notes that the Veteran had symptoms of depressed mood; anxiety; panic attacks that occur weekly or less often; disturbances of motivation and mood; difficulty in establishing and maintaining effective and work social relationships. The examiner observed that the Veteran was alert, oriented, polite, and cooperative. His eye contact was normal. His mood was depressed and his affect flat. His speech was marked by noticeable word finding challenges. Veteran's thought process was occasionally tangential. Veteran did not endorse or show signs of psychotic thought processes. Veteran denied homicidal or suicidal ideation, plan, or intent. The examiner opined that the Veteran had 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. Finally, the examiner noted that the Veteran endorses some word finding problems and cognitive changes. The VA examiner state that it is beyond the scope of his expertise to evaluate the etiology of these symptoms. The symptoms appear to have significantly worsened his symptoms of anxiety. Veteran was strongly encouraged to consult with a medical provider regarding these symptoms. The Veteran's diagnosis of depressive disorder NOS continues to appear to be accurate, and Veteran does not meet diagnostic criteria for PTSD. The Veteran's mental health does appear to have declined significantly since his last exam. It is more likely than not that this is a result of the problem's Veteran has developed with attention and word finding, which leads him to withdraw socially and feel very isolated and anxious. A January 2018 VA examination noted that there is no effect of the Veterans service connected disabilities on his ability to function in an occupational environment. The VA examiner did not perceive any occupational or social impairments related to his service-connected disabilities diagnoses. The VA examiner based his opinion on the Veteran's reported typical functioning, that he volunteers for church and community programs, has a social network, and cares for his own health, nutrition and personal and household needs. The examiner opined that the Veteran had 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, or symptoms controlled by medication. In February 2021, the Veteran submitted medical treatment records. The VA staff psychologist, Dr. J.P., Ph.D., reported that the Veteran having difficult time as a result of the COVID pandemic and other psycho-social stressors. The VA examiner reported that the Veteran is alert and oriented. Thought processes were logical and organized, speech was goal-oriented, with no active suicidal ideations/homicidal ideations (SI/HI), no hallucinations and no delusional ideation. He was attentive and engaged throughout the session, his judgement and insight were fair. Lastly, the Veteran denied any active SI/HI. After a review of the evidence, the Board concludes that the weight of the evidence demonstrates that the Veteran has shown occupational and social impairment with reduced reliability and productivity, particularly as the result of changes in mood, sleep impairment, suspiciousness, anxiety, mild memory loss, self-isolation, and intermittent suicidal ideation, consistent with a 50 percent rating. The evidence does not, however, demonstrate a degree of occupational or social impairment consistent with a rating greater than 50 percent at any time during the period on appeal. A rating greater than 50 percent is not warranted at any time during the period on appeal. In this regard, the Board notes the evidence reflects that, the Veteran retired from his last job in 2012 and was not fired from a or any previous jobs due to his psychiatric symptoms. Additionally, he continued to work as a Deacon at his church and mentor at an elementary school through is church. In November 2017, the VA examiner found that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Board notes that this characterization of the Veteran's symptoms is consistent with a 50 percent disability rating. In June 2016 and January 2018, the VA examiners found that the Veteran's psychiatric symptoms resulted 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, or symptoms controlled by medication, consistent with a 10 percent disability rating. 38 C.F.R. § 4.130. The Board finds that this occupational history is not consistent with a finding that the Veteran suffers from either total occupational impairment or impairment with deficiencies in most areas that would be associated with a 70 percent disability rating or greater. The Board acknowledges that the Veteran has reported that he has difficulty interacting with other people and that he can only relate to certain people, he has to make lists of things in order to remember people's names and that he is more irritable, he has difficulty maintaining his pose in stressful situations, he does not complete tasks that he begins, lowered frustration tolerance, that he used to be a mentor for others. However, no explanation or examples were provided, and these assertions are inconsistent with the evidence of record. The evidence throughout this period consistently notes that the Veteran had no significant impairments with regard to communication, thought processes, or judgment. Additionally, the records indicate that the Veteran's behavior was appropriate, and no reports of problems with work were noted and that he continues to mentor at an elementary school through his church; in fact, when asked during his treatment, he generally indicated that he enjoys being a Deacon, volunteering and mentoring. The Board finds that the medical treatment records reports have high probative value because they were made for treatment purposes, when the Veteran had an incentive to report his history accurately to receive proper care, and thus, outweighs the probative value of the Veteran's assertions regarding his symptoms for compensation purposes. Moreover, although the record reflects that the Veteran has had suicidal ideation in the past when he was depressed; there is no indication however, that the Veteran's depression was unprovoked or that he otherwise had impaired impulse control. Indeed, the evidence throughout this period notes that the Veteran generally denied any physically aggressive or hostile behaviors toward others. The Board has also considered the Veteran's other reports of his symptoms, including flashbacks, and finds that while the Veteran is certainly competent to report observable symptoms that he experiences, such as intrusive thoughts, the Board considered that the October 2014 VA examiner noted that the Veteran reported having flashbacks about every other week. He noted a particular incident where he was running in his dream, and he was "running in the bed" and fell on the floor. The Veteran reported that some flashbacks are triggered by smells in particular diesel fuel. However, the examiner made no assessment of the flashback. Furthermore, there is no indication in the record that these thoughts had any effect on the Veteran's occupational and social impairment. The Board's determination does not diminish the seriousness of the occupational and social impairment that the Veteran has experienced as a result of his psychiatric symptoms. Indeed, the record shows that the Veteran has reported experiencing difficulties with sleep, anxiety, mood, and concentration. The Veteran's unspecified depressive disorder symptoms doubtlessly have a significant impact on his occupational functioning, and it is because of these symptoms that the Veteran has been awarded a 50 percent rating. Notably, a 50 percent rating also contemplates difficulty in establishing and maintaining effective work relationships. The Board acknowledges and has considered the Veteran's reports of suicidal ideation. However, the Board finds that such thought does not support the award of a 70 percent rating. The Veteran's suicidal thought occurred only intermittently, and the Veteran has consistently denied of any thought or intentions of suicide. The Veteran stated that "I have nieces and nephews that are looking at me and how I live." See November 2017 C&P exam. He also stated that "you can't worship God if you're suicidal or depressed." See October 2017 CAPRI. The Veteran simply has not endorsed any other symptoms which would make his disability picture look more like that of occupational and social impairment with deficiencies in most area. The Veteran does not report any delusions or hallucinations, no mannerisms of speech or behavior. Although suicidal ideation is listed as a symptom to consider under a 70 percent disability rating, there is no evidence in the record that the Veteran's suicidal ideation have any impact on his social or occupational functioning. The Board reiterates that the criteria set forth in the rating formula for mental disorders are 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). Thus, the Board's analysis focuses on the resulting social and occupational impairment due to the current severity, frequency, and duration of his symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Therefore, the Board finds that the Veteran's intermittent suicidal ideation events, does not rise to the level of frequency, duration, or severity to warrant a higher evaluation. The Veteran has not endorsed any other symptoms which would indicate that he suffers from either occupational and social impairment with deficiencies in most areas or total occupational and social impairment. The evidence of record reflects that he gets along with people he is close to, maintains his friendships, gets along with people he does not know, has continuous contact with his siblings, and has no significant difficulties performing activities of daily living. The evidence also reflects that the Veteran has a long history of having adequate work with fair-to-good working relationships with his peers and supervisors. However, the Board acknowledges that the Veteran's unspecified depressive disorder symptoms impact his occupational and social functioning, and it is because of these symptoms that the Veteran is in receipt of a 50 percent rating. For the reasons set forth above, however, the Board finds that the Veteran's degree of occupational and social impairment does not approximate the symptoms associated with a 70 percent disability rating or greater. The benefit of the doubt doctrine is not for application. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disease or injury. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The Veteran has had combined disability ratings of 10 percent from July 11, 2008; 30 percent from August 1, 1992; 40 percent from October 11, 2012, and currently is service connected for unspecified depression disorder rated as 50 percent disabling, and tinnitus rated as 10 percent disabling. His combined evaluation is 60 percent which does not meet the minimum percentage rating required for consideration of assignment of a total disability rating for individual unemployability at any point during the appeal period. 38 C.F.R. § 4.16(a). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In his December 2017 VA 21-526EZ and VA 21-8940, the Veteran expressed that his PTSD and mental disorder prevented him from working. A June 2017 medical treatment record, Dr. J.D.C., Ph.D., opined that the Veteran's post-traumatic stress disorder and symptoms of depression have worsened over the past several years and at this time the Veteran is unable to be gainfully employed. However, the Veteran is not service-connected for PTSD but is service-connected for unspecified depressive disorder (claimed as PTSD to include depression and anxiety). Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After reviewing the record and conducting any additional development deemed necessary, in accordance with 38 C.F.R. § 4.16(b), refer the issue of entitlement to extraschedular TDIU to VA's Director of Compensation Service. 3. Then, readjudicate the issue of entitlement to TDIU with consideration of the June 2017 medical treatment record with an opinion from Dr. J.D.C., Ph.D. If any benefit sought on appeal remains denied, issue an SSOC and allow the appropriate time for response. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.