Citation Nr: 1531711 Decision Date: 07/24/15 Archive Date: 08/05/15 DOCKET NO. 13-08 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for service connected panic disorder prior to January 16, 2015, and in excess of 50 percent thereafter. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2012 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified before the undersigned Acting Veterans Law Judge at a June 2013 videoconference hearing, and a transcript of this hearing is of record. In April 2014, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional records and afford the Veteran a VA medical examination. The action specified in the April 2014 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to June 4, 2014, the Veteran's panic disorder was characterized by 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 symptoms including, but not limited to: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss(such as forgetting names, directions, recent events). 2. After June 4, 2014, the Veteran's panic disorder was characterized by occupational and social impairment with reduced reliability and productivity due to symptoms including, but not limited to: anxiety; chronic sleep impairment; panic attacks more than once a week; disturbances of motivation and mood; and difficult establishing and maintaining effective work and social relationships. However, his disability did not result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as, for example: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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; and inability to establish and maintain effective relationships. 3. The Veteran's service-connected disabilities do not prevent him from finding or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 4, 2014, the criteria for entitlement to a disability evaluation in excess of 30 percent for a panic disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9412 (2014). 2. After June 4, 2014, the criteria for entitlement to a disability evaluation in excess of 50 percent for a panic disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9412 (2014). 3. The criteria for entitlement to a total disability rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R., Part 4 (2014). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2014). 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 (2014). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran's panic disorder is rated under the General Rating Formula for Mental Disorders, found at 38 C.F.R. § 4.130 (2014). A 30 percent evaluation 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, and mild memory loss(such as forgetting names, directions, recent events). A 50 percent evaluation 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 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; difficult establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is warranted where 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. Id. It is further noted that the nomenclature employed in the portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2014). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 41 and 50 are assigned when there are 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). Id. GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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). Id. GAF Scores between 21 and 30 are assigned when behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). Id. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2011). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2014). The Veteran has been service connected for panic disorder since 1992, and was assigned an initial 10 percent disability evaluation. In September 2011, he submitted a claim for a higher disability evaluation, alleging that his condition had worsened. In an October 2012 rating decision, the RO increased the Veteran's disability evaluation to 30 percent, effective September 2011. In March 2015, the Veteran's rating was again increased to 50 percent, effective January 2015. VA outpatient treatment records reflect that in April 2011, the Veteran was voluntarily admitted for inpatient psychiatric treatment after experiencing suicidal ideations. Veteran endorsed worsening symptoms of anxiety over the past few months, with thoughts of hopelessness, worthlessness, and being a burden to family. He endorsed depressed mood, anhedonia, low energy, and poor motivation. Following his hospitalization, the Veteran was seen for ongoing medication management and individual therapy. In November 2011, the Veteran was afforded a VA examination. He described an increase in his anxiety symptoms beginning in 2008. Specifically he reported having difficulty driving to work because he had to drive up a large mountain, which caused his ears to pop. The Veteran explained that any physical change in his body would frequently trigger a panic attack, therefore the popping of his ears would cause him significant anxiety. He stated that he would cope with these symptoms of anxiety by pulling over and calling a friend to calm him down, but she died in April 2008, after which he experienced difficulty controlling his anxiety on his way to work. Additionally, he reported experiencing anxiety while in the shower, as well as a lack of motivation to get up in the morning. Because of these symptoms, the Veteran was frequently late to work and was fired in 2008. Currently, the Veteran reported experiencing anxiety while driving, in the dark, in the shower, and in situations where he feels trapped. He stated that he gets one or two panic attacks a month. The Veteran also reported experiencing symptoms of depression including sad mood, loss of pleasure in activities he used to enjoy, restless sleep, fatigue and feelings of worthlessness and hopelessness. He denied currently experiencing any suicidal ideation or intent. The Veteran reported a good relationship with the oldest of his two daughters, as well as his father and sister, who live nearby. He stated that he is friendly with his co-workers and customers, but denied socializing with anyone outside of work. His only close friend died in 2008. He reported that after coming home from work, he watches movies. His only other leisure activity is taking his sister's dogs for a walk in the park, which he does frequently. He has worked as a store manager since 2010. The examiner observed that the Veteran was disheveled and poorly groomed, but was alert and oriented in all spheres. He sustained attention and concentration the duration of the evaluation. His thought processes appeared rational and there was no evidence for lethality. The Veteran's mood at the time of the evaluation was anxious and his affect congruent. He displayed a cooperative attitude towards the evaluation, and insight and judgment were fair. There was no evidence for impairment in thought process or communication. The Veteran reported that in the past, he frequently gambled using lottery scratch off tickets, but he has not engaged in this behavior for approximately one year. He denied ever losing a significant amount of money as a result of his gambling. No current evidence of impulsivity was reported or exhibited. He also denied a history of obsessive or compulsive tendencies. There was no evidence for delusions or hallucinations. The Veteran denied any problems with attention or concentration, and his memory appeared grossly intact for recent and remote events. He adequately maintained all activities of daily living independently. The Veteran was diagnosed with panic disorder without agoraphobia and assigned a GAF score of 65. The examiner concluded that although the Veteran has had periods of worsening symptoms of anxiety and depression, overall, his condition has not significantly changed since his last examination and he opined that the Veteran was currently employable. In September 2012, the Veteran was seen by a private physician, Dr. E.J.. At that time, he complained of anxiety and mood disturbances, as well as poor sleep, nyctophobia, agoraphobia, claustrophobia, and panic attacks several times a month. However, he denied suicidal or homicidal ideations or difficulty concentrating. Dr. E.J. diagnosed the Veteran with anxiety, depression, and PTSD. In October 2012, the Veteran met with a VA Vocational Rehabilitation Specialist for assistance in obtaining employment. The specialist concluded that the Veteran was capable of full time employment. In February 2013, the Veteran was afforded another VA examination. The Veteran reported that since his last examination, he quit his job because of safety concerns and lost his home to foreclosure. Since then, he has been residing in transitional housing for veterans. He stated that these stressors have caused his anxiety to increase. He described mild to moderate anxiety on a daily basis, with weekly panic attacks. He also continued to complain of chronic sleep impairment. The Veteran was diagnosed with moderate panic disorder with agoraphobia and assigned a GAF score of 60. The examiner indicated that the Veteran's condition was characterized by 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. She opined that the Veteran was fully employable. In March 2013 through April 2013, the Veteran was hospitalized for treatment of his gambling addiction for six weeks and received electro-convulsion therapy. Treatment records reflect that the Veteran reported improvements in his sleep and mood following this treatment. A discharge summary reported his GAF at admission as 35 and at discharge as 55. At his June 2013 hearing, the Veteran claimed that he had daily panic attacks, is homeless, and cannot work. The Veteran underwent psychological testing in September 2013. The profile was consistent with a high level of anxiety, indecisiveness, and rumination over anticipated problems. Depression was also likely, along with pessimism, fatigue, somatic symptoms, and somewhat slowed speech and decision making. The Veteran was diagnosed with panic disorder with agoraphobia, pathological gambling in early partial remission, generalized anxiety disorder, dysthymic disorder, and personality disorder nos (dependent features, possible avoidant feature). A GAF score of 55 was assigned. In October 2013, the Veteran told his treating psychiatrist that he has not recently had any panic attacks, although he continues to experience anxiety, sleep disturbances, low energy and mood, feelings of worthlessness or helplessness, and difficulty concentrating. A GAF score of 59 was assigned. Records received from the Social Security Administration (SSA) were also reviewed. In August 2012, a psychologist reviewing the Veteran's claim concluded that he is able to meet the basic mental demands of competitive work on a sustained basis, despite the limitations resulting from his psychiatric impairment. In January 2014, the Veteran was awarded disability benefits from SSA. Beginning June 2014, the Veteran started receiving intensive outpatient therapy at Western Psychiatric Institute and Clinic for PTSD and panic disorder. He was assigned a GAF score of 45 at his intake evaluation. In January 2015, the Veteran was again afforded a VA examination. He continued to complain of anxiety, poor sleep, and low mood, with panic attacks five times per week. He denied suicidal or homicidal ideations. There was no evidence of psychosis or obsessive compulsive disorder. Since his last examination, the Veteran has resided in transitional housing and a VA domiciliary. His only employment since he quit his job in March 2012 was seasonal employment at Target from September 2013 through January 2014. The Veteran described this job as stressful, but denied missing any significant time from work due to his psychiatric disability. The Veteran reported that he has no relationship with his youngest daughter and limited relationship with his father, but is very close with his eldest daughter, who he described as his "best friend." He stated that he enjoys taking walks and talking with his daughter on the phone. The Veteran arrived on time to his appointment. He was dressed in clean, casual attire. Grooming and hygiene appeared adequate. His attention, memory, and concentration were grossly intact, and his speech was normal in rate and volume. The Veteran's thought processes were clear, logical, and goal-directed. Thought content was without evidence of hallucinations, delusions, or paranoia. His mood was dysphoric, with anxious affect. Judgment and insight appeared intact. The examiner noted that there is no evidence based on her examination that the Veteran experiences any impaired memory or inability to understand complex commands. Further, records reviewed did not indicate a history of such impairment. Additionally, there was no evidence of stereotyped speech. The Veteran was diagnosed with panic disorder with agoraphobia and pathological gambling in remission. The examiner concluded that the Veteran's disability would result in occupational and social impairment with reduced reliability and productivity. However, the examiner felt that the Veteran was capable of employment. She considered it likely that with alleviation of chronic stressors, such as homelessness and unemployability, his mood and baseline anxiety would improve allowing him to tolerate the stress and interpersonal interactions required to maintain employment. However, the Veteran would like require certain accommodations (e.g., day shift as most/all panic attacks are reported at night) in order to maintain employment. Based on the above evidence, the Board finds that prior to June 4, 2014, the Veteran's panic disorder most closely approximated the 30 percent disability evaluation. While during the period from September 2011 through January 2015, the Veteran occasionally experienced temporary worsening of his symptoms, overall, his disability, as reflected by his GAF scores (generally ranging from mid 50s to mid 60s) and reported symptoms was generally mild to moderate. Although the Veteran had periods of unemployment during this period on appeal, the record reflects that neither job ended because of the Veteran's service connected disability. After June 4, 2014, private medical records from Western Psychiatric and the Veteran's January 2015 VA examination reflects a sustained period of more severe disability without evidence of improvement, warranting a higher evaluation of 50 percent. However, the Board finds that a higher disability evaluation of 70 percent is not warranted. The Veteran's disability, while resulting in some occupational and social impairment, was not manifest by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as, for example: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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; and inability to establish and maintain effective relationships. The 70 percent rating criteria contemplate someone with a debilitating level of disability who suffers from severe cognitive impairment and is unable to perform even routine daily activities, such a maintaining personal hygiene. The record does not support a finding that the Veteran is so severely impaired. Rather, the evidence shows that the Veteran's memory, concentration, judgement, and other cognitive functioning are at worst minimally impaired. There is no evidence of hallucinations, delusions, psychosis, obsessions, or compulsions, nor is there any evidence that he is considered a danger to himself or others. He is able to communicate effectively and interact appropriately with his roommates and treatment providers and perform all activities of daily living. Each of the VA examiners who has evaluated the Veteran has determined that he is competent and employable. In conclusion, the preponderance of the evidence does not support a higher schedular rating. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2014). Extraschedular Evaluations The Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2014). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. TDIU The Veteran is also seeking entitlement to a total disability rating based on individual unemployability, alleging that he is unable to work due to his service-connected disabilities. Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2014). The veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, the mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. The Veteran is currently service connected for panic disorder with agoraphobia, rated as 50 percent disabling; lumbosacral strain with degenerative disc disease of the lumbar spine, rated as 40 percent disabling; and radiculopathy of the left lower extremity, rated as 10 percent disabling. He is also service connection for chronic folliculitis and residuals of an injury to the testicles, but these disabilities are not compensable. The Veteran's combined disability rating is 70 percent. The record indicates that the Veteran was last gainfully employed in January 2014, that he has a high school diploma and one year of college, and that he has occupational experience as a manager. As the Board has discussed in significant detail above, the Veteran was afforded VA examinations of his service connected panic disorder in November 2011, February 2013, and January 2015, and all of the VA examiners concluded that the Veteran is employable. Additionally, in August 2012, a psychologist reviewing the Veteran's claim for SSA benefits concluded that he is able to meet the basic mental demands of competitive work on a sustained basis, despite the limitations resulting from his psychiatric impairment. An evaluation of the Veteran's physical limitations as part of his SSA claim found that the Veteran would be unable to engage in heavy lifting and that he would have limitations on prolonged sitting, standing, and walking. However, the reviewing physician noted that the Veteran's physical disability did not appear to significantly limit his daily activities and that he did not require any assistive devices. At his most recent VA examination in January 2015, the Veteran reported that he enjoys taking walks, while medical records from Western Psychiatric document that the Veteran joined a gym. Thus, it appears that the Veteran's service connected disabilities do not preclude regular physical activity. In October 2012, the Veteran met with a VA Vocational Rehabilitation Specialist for assistance in obtaining employment. This specialist concluded that the Veteran was capable of full time employment. In September 2013, a VA examiner reviewed the Veteran's claims folder and opined that the Veteran is capable of light physical and sedentary employment. Regarding the Veteran's employment history during the period on appeal, the record shows that the Veteran worked as a store manager through early 2012, at which time he quit because of concerns about his personal safety. The Board notes that the Veteran's concerns about neighborhood crime and the presence of weapons at his place of employment are factors that would alarm most individuals in similar circumstances, regardless of the presence or absence of a preexisting psychiatric disability. The Veteran was also employed doing seasonal work for Target from September 2013 through January 2014, and his work at Target ended because of the temporary nature of his employment. At his January 2015 VA examination, the Veteran denied losing significant time from work due to his disability. Thus, in both cases, it does not appear that the Veteran's psychiatric disability was the primary reason his employment ended. Based on the above evidence, the Board finds that the Veteran's service connected disabilities alone would not prevent him from finding and maintaining substantially gainful employment. While the Veteran's degenerative disc disease of the lumbar spine with radiculopathy likely precludes physical labor of any kind, the preponderance of the evidence reflects that the Veteran is still capable of at least sedentary employment. The Veteran's symptoms might require modest accommodations, but there is no evidence of significant impairment to memory, concentration, or other cognitive functioning that would prevent the Veteran from performing sedentary employment. Nor does the preponderance of evidence support a finding that the Veteran's anxiety and depression are so debilitating as to preclude substantially gainful employment. Significantly, the Board notes that although the Veteran has at times complained that he is unable to work, at other times, including most recently at his January 2015 VA examination, he has expressed an interest in employment. Furthermore, the Board notes that despite the Veteran's complaints that his most recent employment at Target was extremely stressful for him, he denied missing any significant time from work because of his disabilities and his employment ended not because he was terminated or he quit, but because it was a temporary position. The Board has also considered the findings of the Social Security Administration, which in January 2014 granted the Veteran disability benefits. However, SSA considers factors such as the Veteran's age that the Board is precluded from considering when determining whether or not TDIU is warranted. Furthermore, the Board gives greater weight to the medical evidence of record compared to an administrative decision. For all the above reasons, entitlement to TDIU is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2014). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2014). Here, the Veteran was provided with the relevant notice and information prior to the adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, SSA records and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition and his employability. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a personal hearing before a member of the Board. The hearing was adequate as the Veterans' Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). ORDER Entitlement to a disability evaluation in excess of 30 percent for a panic disorder prior to June 4, 2014 is denied. Entitlement to a disability evaluation in excess of 50 percent for a panic disorder after June 4, 2014 is denied. Entitlement to TDIU is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs