Citation Nr: 1736641	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-37 636	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent prior to April 19, 2010 and from August 1, 2010 to June 10, 2016 and an initial evaluation in excess of 50 percent from June 10, 2016 for posttraumatic stress disorder (PTSD). 

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Bilstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1968 to January 1970 and was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In August 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record. 

In April 2015, the Board remanded the case for further evidentiary development regarding the above-named issues.  The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

The April 2008 rating decision granted service connection for PTSD, evaluated as 10 percent disabling effective from June 23, 2007, the date of the claim.  In an October 2010 rating decision, the RO granted a temporary evaluation of 100 percent from April 19, 2010 to August 1, 2010.  In a July 2013 rating decision, the RO increased the initial evaluation for service-connected PTSD to 30 percent, effective June 23, 2007 to April 19, 2010 and from August 1, 2010.  Following the April 2015 Board remand, the RO increased the evaluation of PTSD to 50 percent effective June 10, 2016. 

Accordingly, the applicable law mandates that when an appellant seeks a higher rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See A.B. v. Brown, 6 Vet. App. 35 (1993).  Although the period in which the Veteran was granted 100 percent evaluations does constitute a full grant for his service-connected PTSD, higher evaluations are still available for the each of the staged-periods in which the Veteran's condition was rated less than 100 percent.  As such, these staged-periods are still under appeal and are reflected in the amended caption on the title page.


FINDINGS OF FACT

1.  For the periods from June 23, 2007 to April 19, 2010, August 1, 2010 to June 10, 2016, and since June 10, 2016, the Veteran's PTSD has been productive of no more than occupational and social impairment with reduced reliability and productivity.  It has not been manifested by occupational and social impairment with deficiencies in most areas.

2.  The Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU; the Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  From June 23, 2007 to April 19, 2010, the criteria for an increased rating of 50 percent, but no higher, for service-connected PTSD have been met.  38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. § 4.130, Diagnostic Code 9499-9411 (2017).

2.  From August 1, 2010 to June 10, 2016, the criteria for an increased rating of 50 percent, but no higher, for service-connected PTSD have been met.  38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. § 4.130, Diagnostic Code 9499-9411 (2017).

3.  Since June 10, 2016, the criteria for a rating of 50 percent, but no higher, for service-connected PTSD have been met.  38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. § 4.130, Diagnostic Code 9499-9411 (2017).

4.  The criteria for a TDIU have not been met.  38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Ratings

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C.S. § 1155; 38 C.F.R. § 4.1.  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.  

The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119   (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).

The Veteran's PTSD was rated as 30 percent disabling from June 23, 2007 to April 19, 2010 and from August 1, 2010 to June 10, 2016, and is currently rated as 50 percent disabling since June 10, 2016 under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411.  The relevant rating criteria are set forth below.

A 30 percent rating is assigned 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 assigned 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 assigned for 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 worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is assigned 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

When evaluating a mental disorder, the rating agency shall consider 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 agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination.  38 C.F.R. § 4.126(a).  When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b). 

The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996).  A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).  A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 51 to 60 indicates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).  A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. 

After review of the evidence of record, the Board finds that a rating of 50 percent is warranted for the periods from June 23, 2007 to April 19, 2010, from August 1, 2010 to June 10, 2016, and since June 10, 2016.  A higher rating of 70 percent is not warranted for any portion of the period on appeal.

Turning to the relevant evidence of record, the Veteran was first afforded a VA PTSD examination in March 2008.  The Veteran noted he had occasional social relationships, activities, and leisurely pursuits.  He denied a history of suicide attempts, violence, or assault.  The VA examiner observed that the Veteran had a clean general appearance, cooperative attitude, good mood, normal affect, and slow speech.  The examiner also noted that the Veteran was easily distracted but was oriented to all spheres, had normal thought process and content, and had normal insight and judgment.  The Veteran denied delusions, hallucinations, obsessive/ritualistic behavior, panic attacks, and suicidal/homicidal thoughts.  The examiner indicated that the Veteran had good personal hygiene and impulse control.  He also noted that the Veteran had no problem with activities of daily living.  The Veteran presented with normal remote and immediate memory but mildly impaired recent memory.  The examiner diagnosed the Veteran with PTSD and a GAF score of 63.  He also reported that the Veteran had mild social and occupational impairment due to PTSD.  He further explained that the Veteran has occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, to include avoidance behaviors, but with generally satisfactory functioning. 

However, VA mental health treatment records from December 2007 to August 2009 are demonstrative of a condition that is more severe in nature.  The Veteran reported that he has nightmares, difficulty with sleep, and wakes up three to four times per night but is able to fall back asleep.  He also endorsed symptoms increased depression and anxiety, fatigue, irritability, crying spells, and difficulty with controlling anger outbursts.  His VA provider noted that the Veteran seems rather isolated.  The Veteran also indicated that his psychotropic medications cause drowsiness.  He denied homicidal and suicidal ideas, hallucinations, and use of alcohol and illicit drugs.  Mental status examinations reflected that the Veteran is alert and oriented, fairly groomed, and calm and cooperative.  He had appropriate attention and concentration, intact insight and judgment, and logical and goal-directed speech.  However, the mental status examinations also showed that the Veteran made intermittent eye contact, had a depressed mood and affect, and was tearful at times.  Despite these symptoms, in May 2008, the Veteran stated that he attends church and enjoys going to the gym, movies, and out for meals during his free time.  He also reported that his primary interest is rebuilding and fixing old cars, including motor work, painting, and sewing his own upholstery.  The Veteran indicated that although he feels lonely he has numerous friends who seek his help with cars. 

However, in his October 2008 Notice of Disagreement, the Veteran reported worsening symptoms and that he is more reclusive, avoiding individuals and crowds.  

The Board finds the Veteran's PTSD from June 23, 2007 to April 19, 2010 most closely approximated the criteria for a 50 percent rating.  Throughout this period, the Veteran did not demonstrate the symptoms associated with higher ratings, nor did he demonstrate other symptoms of similar severity, frequency, and duration.  Although the Veteran endorsed depression and anxiety, he consistently denied suicidal and homicidal ideation or hallucinations during treatment and during the March 2008 VA examination.  He has difficulty in establishing and maintaining effective social relationships, but not an inability to do so as required for the next higher rating of 70 percent, as he reported that he attends church and the gym regularly and helps numerous friends with automotive work.  Moreover, the symptoms noted by the Veteran during treatment or VA examiner, including fatigue, nightmares, irritability, difficulty with sleeping and symptoms of depression, are contemplated by the 50 percent rating criteria or by the criteria for lower evaluations.  While some of the Veteran's symptoms during this period are not specifically enumerated in those criteria, the Board finds that the Veteran's overall mental health picture during this period, as evidenced by VA treatment and during the VA examination, is in keeping with a 50 percent rating.  The Board also notes that during this period, his treating providers assessed the Veteran with mildly depressed mood and affect.  The VA examiner also assessed the Veteran with a GAF score of 63 and reported that his PTSD resulted in mild impairment in functional status and quality of life.  Therefore, the Board finds that a rating in excess of 50 percent for the Veteran's depressive disorder is not warranted from June 23, 2007 to April 19, 2010.  

In sum, the Board finds that a rating of 50 percent, but not higher, for the Veteran's PTSD is warranted from June 23, 2007 to April 19, 2010.  The Board now turns to the period from August 1, 2010 to June 10, 2016.

VA mental health treatment records from August 2010 to November 2013 reveal that the Veteran continued to report depression, anxiety, and poor sleep, including nightmares and night sweats, despite compliance with medication.  He denied suicidal and homicidal ideation, hallucinations, and alcohol and drug use but did endorse flashbacks and intrusive thoughts.  Although the Veteran reported difficulty with memory, focus, and completion of tasks, mental status examinations also document that the Veteran presented alert and oriented, fairly groomed, and with appropriate attention and concentration.  He also had logical and goal-directed speech and intact insight and judgement.  Despite a less constricted affect and depressed mood, the Veteran continued to have intermittent eye contact.  He also reported that he must stay busy to alleviate his depression.  He reported that he participates in some activities, including going to church or attending Alcoholics Anonymous (AA) meeting with friends.  He also reported that he mainly watches television, works on his car, and mows the lawn. 

Likewise, at VA mental health visits from February 2014 to March 2016, the Veteran complained of depression, flashbacks, panic attacks, intrusive thoughts, and poor sleep with nightmares approximately three times per week.  He also reported that he angers easily and as a result, he avoids interacting with people.  He continued to deny suicidal and homicidal ideation, hallucinations, and alcohol and drug use.  Mental status examinations documented findings similar to those discussed above.  Mental health providers also noted the Veteran had no abnormal psychomotor activity or perceptual disturbances.  Although he reported an estranged relationship with his children, the Veteran did request a gym consult as he found it helped his mood.  He also reported he was recently married. 

In April 2011, the Veteran's friend also reported that he had depression and sudden, but short-lasting, mood swings.  He also noted that the Veteran's mood swings have become more frequent. 

In August 2014, the Veteran reiterated that he has difficulty with sleep, including nightmares up to twice per week.  He also noted he has problems with focusing and completing complex tasks.  However, he testified that he does cook for himself and clean his home, albeit with reminders.  Board Hearing Transcript at 4-6, 15-16. 

The Board finds the Veteran's PTSD symptoms from August 1, 2010 to June 10, 2016 most closely approximated the criteria for a 50 percent rating.  Throughout this period, the Veteran did not demonstrate the symptoms associated with higher ratings, nor did he demonstrate other symptoms of similar severity, frequency, and duration.  Although the Veteran endorsed depression, anxiety, flashbacks, and intrusive thoughts, he consistently denied suicidal and homicidal ideation or hallucinations during treatment.  He has difficulty in establishing and maintaining effective social relationships, but not an inability to do so as required for the next higher rating of 70 percent, as he reported that he attends church and the gym regularly and that he got married recently.  Moreover, the symptoms noted by the Veteran during treatment, including fatigue, nightmares, irritability, difficulty with sleeping and symptoms of depression, are contemplated by the 50 percent rating criteria or by the criteria for lower evaluations.  While some of the Veteran's symptoms during this period are not specifically enumerated in those criteria, the Board finds that the Veteran's overall mental health picture during this period, as evidenced by VA treatment, is in keeping with a 50 percent rating.  The Board also notes that during this period, his treating providers assessed the Veteran with a mildly depressed mood and affect.  Therefore, the Board finds that a rating in excess of 50 percent for the Veteran's depressive disorder is not warranted from August 1, 2010 to June 10, 2016.  

In sum, the Board finds that a rating of 50 percent, but not higher, for the Veteran's PTSD is warranted from August 1, 2010 to June 10, 2016.  The Board now turns to the period since June 10, 2016.

The Veteran was afforded another VA PTSD examination in June 2016.  The VA examiner observed that the Veteran has symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and difficulty in establishing and maintaining effective work and social relationships.  The Veteran was friendly and cooperative and maintained good eye contact during the examination.  The examiner opined that the Veteran has occupational and social impairment with reduced reliability and production.  

In July 2016, the Veteran's friends submitted letters indicating that he has a negative outlook and lost various friends due to his PTSD symptoms.  However, his friend also reported that the Veteran's symptoms have been improving since his recent marriage.    

At VA mental health treatment visits from June 2016 to March 2017, the Veteran again complained of depression, flashbacks, intrusive thoughts, and poor sleep with nightmares.  However, the Veteran reported that he attends the gym three times a week.  Treatment notes indicate the Veteran was well-groomed and had no abnormal behaviors.  He appeared to have appropriate speech and oriented to all spheres.  Despite intermittent eye contact, constricted affect, and a depressed mood, he was observed to have intact judgment, intact insight, and appropriate attention and concentration. 

The Board finds the Veteran's PTSD symptoms since June 10, 2016 most closely approximated the criteria for a 50 percent rating.  Throughout this period, the Veteran does not demonstrate the symptoms associated with higher ratings, nor does he demonstrate other symptoms of similar severity, frequency, and duration.  Although the Veteran endorses depression, anxiety, flashbacks, and intrusive thoughts, he consistently denies suicidal and homicidal ideation or hallucinations during treatment.  He has difficulty in establishing and maintaining effective social relationships, but not an inability to do so as required for the next higher rating of 70 percent, as he reported that he continues to attend church and the gym regularly and was recently married.  Moreover, the symptoms noted by the Veteran during treatment, including fatigue, nightmares, irritability, difficulty with sleeping and mild symptoms of depression, are contemplated by the 50 percent rating criteria or by the criteria for lower evaluations.  While some of the Veteran's symptoms during this period are not specifically enumerated in those criteria, the Board finds that the Veteran's overall mental health picture during this period, as evidenced by VA treatment and the June 2016 VA examination, is in keeping with a 50 percent rating.  The Board also notes that during this period, his treating providers assessed the Veteran with a mildly depressed mood and affect.  The VA examiner also reported that the Veteran was friendly, pleasant and cooperative throughout the examination and smiled freely and often during the course of conversation.  Therefore, the Board finds that a rating in excess of 50 percent for the Veteran's depressive disorder is not warranted since June 10, 2016.  

Furthermore, the evidence of record does not support a rating of 100 percent - the highest disability evaluation available - at any time during the periods from June 23, 2007 to April 19, 2010, from August 1, 2010 to June 10, 2016, and since June 10, 2016.  The March 2008 and June 2016 examiners did not note that the Veteran's symptoms cause total occupational and social impairment.  Moreover, the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration.  Persistent delusions or hallucinations have not been shown, nor has that Veteran been shown to have gross impairment in thought processes or communication, inappropriate behavior, an inability to perform activities of daily living, or any of the other markers of total occupational and social impairment due to his service-connected PTSD.

With respect to each period, the Board has considered the Veteran's assertions as to his symptomatology and the severity of his condition, but to the extent he believes he is entitled to higher ratings during those periods, concludes that the findings during medical evaluations are more probative than the Veteran's lay assertions to that effect. 

In sum, the Board finds that, for service-connected PTSD, a rating of 50 percent is warranted from June 23, 2007 to April 19, 2010 and from August 1, 2010 to June 10, 2016, and that a rating no higher than 50 percent is warranted from June 10, 2016.  

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 (2017).  A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15 (2017).

A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a).

For the purpose of one 60 percent disability, or one 40 percent disability in, the following will be considered as one disability: (1) disabilities of one or both upper    or lower or one or both lower extremities, including the bilateral factor if applicable;  (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. 
§ 4.16(a).

For a veteran to prevail on a TDIU claim, the record must reflect some factor        that takes the claimant's case outside the norm.  The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since 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.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

Consideration may be given to the veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017).  The United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  The Federal Circuit's decision in Geib governs the adjudication of this appeal.  See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). 

The Veteran is service connected for PTSD, rated as 50 percent disabling, and has no other service-connected impairments prior to April 6, 2017.  The Veteran was service-connected for hearing loss, rated as 20 percent disabling, and tinnitus, rated as 10 percent disabling, effective April 6, 2017.  Prior to April 6, 2017, the Veteran's combined scheduler rating was 50 percent.  Since April 6, 2017, the Veteran's combined schedular rating is 60 percent; thus, the Veteran does not meet the schedular requirements for a TDIU as set forth in 38 C.F.R. § 4.16(a).

Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability.  38 C.F.R. §§ 3.321(b), 4.16(b).  In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the AOJ first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration.  Although, the Veteran claimed that he has been rendered unable to obtain or maintain a job due to his psychiatric disability since 1989, other than his bare assertion, he has not explained how his psychiatric disability has rendered him unemployable since 1989.  To the contrary, during VA treatment, he discussed how he enjoys restoring old cars, including motor work and sewing his own upholstery, and helping his friends fix their cars.  He also discussed how he enjoys going to the movies, church, and the gym three times per week.  Additionally, the March 2008 examiner found that the Veteran's PTSD symptoms, including avoidance behaviors, cause only an occasional decrease in work efficiency.  The June 2016 examiner found that the Veteran is only moderately impaired to in his ability to engage in physical and sedentary employment and the treatment records reflect as such.  In this case, the Board concludes that referral for extraschedular evaluation under 38 C.F.R. § 4.16(b) is not warranted because the Board finds that the preponderance of the evidence shows that the Veteran's service-connected PTSD does not render him unemployable.  Therefore, referral to the Director, Compensation service, for extraschedular consideration, is not warranted.

ORDER

For the periods from June 23, 2007 to April 19, 2010, August 1, 2010 to June 10, 2016, and since June 10, 2016, a rating of 50 percent, but no higher, for service-connected PTSD is granted, subject to the rules and regulations governing the payment of VA monetary benefits.
	
Entitlement to a TDIU is denied.


____________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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