Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2375
DALE E. WINGO, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Dale E. Wingo challenges an April 4, 2016, Board decision denying
entitlement to a total disability rating based on individual employability (TDIU). The veteran argues that the Board provided an inadequate statement of reasons or bases by failing to consider relevant evidence postdating 2006, account for his educational and occupational history, and explain how his disabilities did not preclude him from most work activities. For the reasons set forth below, the Court will affirm the Board decision.
I. FACTS
Mr. Wingo served in the Army from 1969 to 1971. He sought service connection for
post-traumatic stress disorder (PTSD) in 2005 and was provided a VA examination in August 2006 to determine the severity of that condition. In December 2006, the regional office (RO) granted service connection for PTSD at 50% disabling. In 2014, the veteran appealed the RO’s decision to the Board, arguing that his PTSD warranted a higher rating and that he was eligible for TDIU.

Since the last VA exam took place in 2006, the Board remanded the case to the RO, with
instructions to provide another VA exam to determine the current severity of his PTSD and whether his service-connected disabilities precluded him from securing substantially gainful employment. The veteran was scheduled for a March 2015 VA examination but failed to attend and did not provide good cause for his absence. Consequently, the Board determined in the decision on appeal that the RO satisfied its duty to assist and proceeded to review his appeal based on the evidence on record, which consisted of his August 2006 VA examination, Social Security
Administration (SSA) records, VA treatment records, and the veteran’s lay assertions.

The Board reviewed the veteran’s claim for a higher PTSD rating first, citing and explaining numerous medical records, dated from 2005 to 2013. These records showed that the veteran has had PTSD symptoms since at least 2005 and that he received GAF scores between 40 to 48, which indicated serious impairment; however, the Board determined that these scores were not supported by the evidence. The Board’s thorough analysis of the evidence in relation to the rating schedule showed that the veteran’s PTSD was not more than 50% disabling because the evidence showed, among other things, that the veteran did not suffer from obsessional rituals; his speech was not found to be intermittently illogical, obscure, or irrelevant; his panic attacks were not nearcontinuous; he could function independently, appropriately, and effectively; and that he did not neglect his own personal appearance or hygiene. Furthermore, his VA treatment records consistently showed his memory, cognition, concentration, and attention to be intact. In sum, the Board found that the veteran’s symptoms did not result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment.

To determine whether referral was warranted for an extra-schedular TDIU determination, the Board began its analysis by pointing out that the veteran had worked as a coal miner from 1974 to 2004 and that he had given alternative explanations for his unemployment. On one occasion, the veteran claimed he was forced to quit because of his disabilities, but on another because of mine closure. The Board then summarized and assessed several 2006 SSA medical records. Those records showed that the veteran’s PTSD symptoms caused mild to moderate limitations on his mental and social functioning and that he had no limitations on his manipulative, visual, or
communicative abilities. Finally, the Board noted that it placed greater weight on the medical evidence than the veteran’s assertion that he was unemployable and concluded that his service-connected disabilities did not preclude him from “most work activities.” This appeal followed.1

1 Mr. Wingo does not challenge the Board’s PTSD decision; thus, the appeal as to this matter is dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc).

II. ANALYSIS
Mr. Wingo’s arguments center on the reasons or bases requirement. The Board must
support its determinations regarding all material issues of fact and law with an adequate statement of reasons or bases that allows the claimant to understand the precise basis for that determination and facilitates review in this Court. See 38 U.S.C. § 7104(d)(1). The Court reviews TDIU determinations for clear error and so will defer to the Board’s finding unless firmly and definitely convinced that a mistake has been made. Sharp v. Shulkin, 29 Vet.App. 26, 31 (2017). It is the claimant who bears the burden to show such error. Bankhead v. Shulkin, 29 Vet.App. 10, 24 (2017).

A. Recent Evidence The veteran first argues that the Board failed to consider evidence relevant to his TDIU claim postdating 2006. He cites seven sources of evidence he believes the Board should have addressed, including VA treatment records dated between January 2007 and January 2011, as well as his own assertions of unemployability. There are several reasons why this argument is unpersuasive. First, although it is true that these records were not explicitly referred to in the TDIU
section of the decision, the veteran ignores that all of this evidence was thoroughly discussed and assessed under the PTSD section, except for a December 2010 record, which reported a GAF score of 43 and that the veteran was “jumpy” and hypervigilant. However, the Court does not consider this omission significant, since the Board did discuss a June 2010 VA treatment record that was identical in substance to the December 2010 record. He also overlooks the fact that the Board considered several other records reporting GAF scores (one reported a score of 40) and explicitly found that his specific symptoms were more probative than his GAF scores because the latter were
not supported by the evidence. Reading the decision as a whole, the Court is not persuaded that the Board ignored this evidence. See Doucette v. Shulkin, 28 Vet.App. 366, 373 (2017).

Second, the Board attempted to gather relevant and recent evidence when it scheduled a
March 2015 VA examination for the express purpose of determining the current severity of his PTSD and the extent to which it affected his employability. The veteran failed to attend this examination, so the Board was forced to rely on the evidence of record. Even so, the Board did. Actually, rating based on the evidence of record is the proper recourse when a missed examination is being provided in connection with an original compensation claim. 38 C.F.R. § 3.655(b) (2017). When, as here, the missed discuss and assess VA treatment records dated from 2005 to 2013 before concluding that his
symptoms neither caused occupational and social impairment with deficiencies in most areas nor total occupational and social impairment. Further, in the TDIU section, the Board discussed several 2006 SSA records indicating that he had no visual, communicative, or functional limitations, and only mild to moderate mental limitations that did not prevent him from performing simple, routine tasks. In light of this evidence, the Board determined that the veteran was not precluded from most
work activities.

Third, the veteran does not explain how the symptoms and GAF scores show that he was
precluded from gainful employment. To support a TDIU claim, the veteran must submit evidence of a medical disability, make a claim for the highest rating possible, and submit evidence of unemployability. Bankhead v. Shulkin, 29 Vet.App. 10, 24 (2017). As the Board found here, the veteran’s records showed that his symptoms may have caused limitations in the workplace, but they did not indicate that he was unemployable. In a recent case, the Court held that similar facts did not even reasonably raise the issue of TDIU. In Bankhead, the Court remanded a Board decision to determine whether the appellant’s PTSD was 70% disabling, but determined that TDIU was not reasonably raised by the evidence. See id. The evidence included records reporting severe symptoms of PTSD and the appellant’s status as a “loner” who had difficulty working with others.
Id. The Court also noted that none of the examiners mentioned unemployability in the records. Id.

Here, the veteran had less severe (50% disabling) PTSD and none of the evidence he cites
suggested that his service-connected disabilities rendered him unemployable. For these reasons, the Court rejects Mr. Wingo’s first argument.

B. Educational and Occupational History
Next, the veteran contends that the Board should have discussed his occupational and
educational history in its denial of TDIU and explained how he was not limited from performing “most work activities.” A discussion of a claimant’s education, training, and work history is often important in TDIU cases because this type of claim is based on the claimant’s “particular circumstances.” Pederson, 27 Vet.App. at 286. Here, the record indicated that the veteran was capable of working in the occupation that he performed for roughly 30 years prior to his August 2006 VA exam, that is, coal mining. After noting that the veteran alternatively attributed his 2004 examination is part of a claim for increase, VA regulations specify that “the claim shall be denied.” Id. But since the
Board didn’t take that course, the Court will discuss it no further. unemployment to disabilities and closure of the mine, the Board determined that the preponderance
of the evidence suggested that Mr. Wingo was not unemployable and found that the medical evidence was more probative on the issue of employability than his assertions. It follows that Mr. Wingo was not precluded from, at the very least, working as a coal miner or in a similar line of work.

In these circumstances, where the veteran was capable of the sort of work he had performed prior to unemployment, a thorough discussion of his work history and education would not have added anything to the decision. The veteran argues that our caselaw required the Board to consider such history, but the factual differences between the cases he cites for support from his own are stark and significant. In Gleicher, the Court noted that the appellant had over time become a loner, an unreliable employee, and that there were two uncontroverted opinions that the appellant was incapable of securing employment due to service-connected 70% disabling PTSD. In this context,
the Court found the Board decision inadequate because it merely alluded to work and education history in finding him employable without relating them to his disabilities. Gleicher v. Derwinski, 2 Vet.App. 26, 27-28 (1991) (observing that severe mental disabilities might more easily render someone unemployable who must make frequent use of mental faculties). In Cathell, the Court found the Board decision inadequate because it contained a bare conclusion that the appellant was employable without any significant analysis of his particular circumstances or acknowledgement that two physicians opined that his mental disorder would make working very difficult. Cathell v.
Brown, 8 Vet.App. 539, 544 (1996). This rendered the decision’s reasons or bases inadequate for judicial review. Here, the Board set out the law, summarized numerous medical records, assessed their significance, and concluded that the medical evidence showed that he was not unemployable due to his service-connected disabilities.

Last, the veteran argues that the Board failed to explain how his disabilities did not preclude him from “most work activities.” An alleged error must prejudice the claimant, who has the burden of showing that the error harmed him. See Shinseki v. Sanders, 556 U.S. 396, 406-09 (2009). Although the phrase “most work activities” is vague in isolation, in context it’s clear the Board was referring to activities involved in coal mining or similar kinds of work as demonstrated by the Board’s finding that the medical evidence’s probative value outweighed the veteran’s assertions that he was incapable of working in the mine. Therefore, a thorough discussion of the type of work he could perform was not necessary. To conclude, even if not a model of clarity, the Court discerns no harm from the Board’s determination that Mr. Wingo’s service-connected disabilities did not
preclude him from “most work activities.” For the reasons set forth above, the Board decision was understandable and facilitated judicial review.

III. CONCLUSION
Accordingly, the Court AFFIRMS the April 4, 2016, Board decision to deny TDIU. The
Court will DISMISS the appeal as to PTSD.

DATED: November 8, 2017
Copies to:
Patrick Berkshire, Esq.
VA General Counsel (027)