Citation Nr: 1803402 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 07-30 856A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1989 to June 1994. This matter came before the Board of Veterans' Appeals (Board) from a September 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2011 and November 2013, the Board remanded the Veteran's claim for entitlement to a TDIU as the Veteran's claim was inextricably intertwined the Veteran's other claims. In July 2016, the Board denied the Veteran's claim for entitlement to TDIU. The Veteran appealed the Board's July 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Veteran's counsel and VA submitted a Joint Motion for Partial Remand (JMR) that requested that the Court vacate, in part, and remand the Board's decision to the extent that the Board failed to provide sufficient reasons and bases in denying the Veteran's claim for entitlement to a TDIU. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. TDIU A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. 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(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his educational and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record indicates the Veteran has completed his GED and has taken some college courses. Since service, the Veteran reports working as a control room technician 48 hours per week from January 1998 to March 2003. In March 2003, the Veteran went on short-term disability, which was extended to long-term disability in September 2003. The Veteran never returned to work. See Your Social Security Statement, dated July 7, 2017. The Veteran has reported numerous justifications for why he went on short-term disability. The Veteran, in October 2003, reported that his employer had sent him home because he was experiencing blackouts related to his high blood pressure. In other instances the Veteran reported that his fear of being trapped at work or injured by machines and his forgetfulness and difficulty concentrating were the main reason he went on disability. Finally, in August 2017, the Veteran indicated that his back disability did not allow him to perform the physical requirements of the job and he was ultimately moved to a different position to accommodate his physical limitations. The Veteran's medical records indicate the Veteran was not reporting PTSD symptoms or other mental health symptoms on a consistent basis prior to his uncontrolled high blood pressure in early 2003. Additionally, the Veteran was able to maintain his employment prior to 2003 despite previous complaints of back and neck pain. The Veteran is service connected for posttraumatic stress disorder (PTSD) at a 30 percent rate from September 30, 2004 and a 50 percent rate from August 15, 2011; lumbosacral strain, claimed as low back pain, at a 10 percent rate from June 26, 1994 and a 20 percent rate from June 1, 2004; cervicothoracic strain, claimed as upper back/neck pain, at a noncompensable rate from June 26, 1994 and a 20 percent rate from June 1, 2004; hypertension at a noncompensable rate from June 26, 1994 and a 10 percent rate from August 14, 2002; and tinea cruris, claimed as jock itch, at a noncompensable rate from June 26, 1994. The Veteran's combined rating for compensation purposes is 10 percent from June 26, 1994; 20 percent from August 14, 2002; 40 percent from June 1, 2004; 60 percent from September 30, 2004; and 70 percent from August 15, 2011. The Veteran does not meet the schedular criteria for TDIU prior to August 15, 2011; however, as noted above, the central inquiry in determining entitlement to TDIU is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to obtain and maintain substantially gainful employment based on his service-connected disabilities alone at any point during the entire period on appeal. Private treatment records from March 2003 indicate the Veteran reported high blood pressure, lightheadedness, nausea, and anxiety causing him to go the hospital. The Veteran was diagnosed with hypertension and anxiety. In April 2003, the Veteran's hypertension was uncontrolled, and his physician reported he was unable to work. At that time, the Veteran was unable to stand, walk, or sit for more than 15 minutes; had limited ability to stoop, bend, walk up stairs, and drive; and he was limited to lifting and carrying 10 pounds or less. In August 2003, a private physician noted the Veteran's hypertension was still uncontrolled, and he was still experiencing lightheadedness and nausea. The physician noted the Veteran was not able to return to work at that time but indicated that a return to work would be possible, with restrictions, once his hypertension was controlled. From August 2002 to August 2003, the Veteran's was seen by a private physician, Dr. J. B., for treatment for hypertension. The Veteran was seen frequently, and throughout that time, the Veteran's blood pressure readings oscilated between normal and high, but as treatment progressed and the Veteran's medications were adjusted, the Veteran's blood pressure readings began to fall. By August 2003, the Veteran's blood pressure had been dramatically reduced to 120/78, and in July 2003, a note written by Dr. J. B. indicated the Veteran could return to work. However, private treatment records from the Occupational Health Clinic at Baptist Medical Park and Dr. R. R. indicate that the Veteran was still struggling to control his hypertension, and, though it was noted that the Veteran could return to work with some restrictions, full duties would not be safe at that time. The Veteran attended a VA examination in October 2003 for his back and neck disabilities. At the examination, the Veteran reported that he gets sharp pain in his lower back with twisting and turning and he reported experiencing decreased range of motion in his back when he was active, limiting how far he can walk. He indicated he had flare-ups one to two times per year. The VA examiner opined that his low back and neck pain would have an impact on his ability to perform non-sedentary employment during a flare-up. In June 2004, the Veteran's VA mental health records indicate the Veteran reported he began obsessing about his health after his hypertension diagnosis. He indicated this anxiety induced fear of being alone because he was afraid he would faint with no one around to assist him. He indicated this caused him to have difficulty with concentration and attention. VA treatment providers assigned a GAF score of 45. At a VA examination for hypertension and back and neck disabilities in June 2004, the examiner noted that the Veteran's hypertension appeared to be uncontrolled, despite trying numerous medications. The Veteran continued to experience significant nausea from the medications and dizziness/lightheadedness related to uncontrolled high blood pressure. The Veteran reported constant pain in his back with flare-ups every three months that would last two weeks on average. In December 2004, the Veteran was seen at VA for mental health treatment. The Veteran reported that his blood pressure was still uncontrolled, and he continued to experience nightmares of being trapped or injured. The Veteran also reported that he was still drinking alcohol to some excess. The VA treatment provider advised the Veteran that drinking was discouraged as it could create problems with the effectiveness of the medications he was taking for his hypertension. At a VA psychiatric examination in January 2005, the Veteran reported that he continued to drink alcohol, though not heavily, and he continued to have nightmares about having an accident at work that he asserted was related to a skiing accident he experienced in 1994 while serving in Iceland. The Veteran reported hypervigilance, irritability, poor concentration, panic attacks, and fleeting suicidal thoughts, though he indicated no plan or intent. The examiner noted that the Veteran was fully oriented with no appearance of memory impairment or judgment impairment. A GAF score of 50 was assigned. At VA treatment in January 2005, the Veteran reported that he continued to have dizzy spells, causing him to fear that he would pass out without warning. He reported that the dizzy spells were related to his panic attacks, although he also noted that his hypertension was still uncontrolled. He indicated that he had some experience with computers and was hoping to begin self-employment in computer repair if his hypertension and anxiety could not be resolved. The Veteran was receptive to applying to VA vocational rehabilitation to investigate these options. At a VA examination for hypertension in March 2005, the Veteran continued to report daily dizziness, which would last for a few minutes causing him to feel disoriented and lost-though he noted he did not believe he had ever lost consciousness. The Veteran reported he had stopped driving due to these symptoms. The Veteran's hypertension was still uncontrolled at this examination, despite his taking four medications. The VA examiner noted that there was no renal artery stenosis causing continued uncontrolled hypertension. As such, the examiner noted the only factor remaining as to why the Veteran's hypertension remained uncontrolled was the Veteran's failure to comply with his prescribed medications. At a VA clinic visit in September 2005, the treatment provider noted the Veteran's conflicting interest in getting his blood pressure under control, indicating that the Veteran would lose disability and health insurance from his previous employer if his hypertension was controlled. In December 2005, the Veteran was seen by a private facility for a referral from the Social Security Administration (SSA). It was noted that the Veteran ambulated to the office with no difficulty. The treatment provider noted no limitations on standing or lifting, and that the Veteran's gait was normal, he was able to bend with no pain, and he was fully oriented with normal thinking. The treatment provider diagnosed the Veteran with uncontrolled hypertension with episodes of syncope and dizziness. The Veteran attended mental health treatment at VA from March 2008 to April 2009. The Veteran reported decreased motivation, instances of sleeping for up to three days at a time due to his hypertension medication, and difficulty concentrating. The Veteran reported that he had hallucinations, often seeing wild animals while he was walking around. Finally, the Veteran indicated that he has difficulty paying his bills-just letting them pile up-but he reported that he had no financial problems. In August 2011, the Veteran attended another VA examination in which he continued to refer to hypertensive episodes from 2002 to 2004 and the episodes he experienced at work related to his uncontrolled high blood pressure. The Veteran reported that he has had no other instances where he had felt that he was having a heart attack since 2004. The Veteran had high blood pressure at this examination, but he reported that he did not take his medication the morning of the examination. The VA examiner diagnosed the Veteran with hypertension, noting that his hypertension was controlled with medication and did not cause functional limitations. The examiner noted several elevated blood pressure readings in his medical records when he was seen for hypertension, but when the Veteran was seen for other complaints, his blood pressure readings were adequate. The examiner noted this raised questions as to the Veteran's compliance with his medication. At this examination, the Veteran also continued to report three to four flare-ups of his back pain that would last approximately two weeks. However, the examiner reported that the Veteran's cervical and lumbar strains were stable and resolved following the skiing accident and would not cause functional limitations. The examiner noted degenerative disc disease in the Veteran's neck and lumbar spondylosis, which are not service connected, though they would not cause functional limitation. The examiner opined that the Veteran would be capable of sedentary to moderate duty employment. The Veteran's PTSD was also evaluated at this examination. The Veteran reported, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, impairment of short and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation (intent and planning were denied), obsessional rituals, illogical speech, near-continuous panic or depression affective ability to function independently and effectively, impaired impulse control, spatial disorientation, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, persistent danger of hurting self or others, disorientation to time and place. The examiner diagnosed the Veteran with anxiety disorder, PTSD, and depressive disorder, noting that the symptoms could not be attributed to a specific disability without speculation. A GAF score of 41 to 50 was assigned. At a VA psychiatric examination in July 2012 the examiner diagnosed the Veteran with panic disorder with agoraphobia and PTSD. A GAF score of 55 was assigned. At another VA examination in October 2014, the Veteran reported that he could no longer ride his bike as often because of increased back and neck pain. He also noted that his wife does most of the household chores, though he is able to do some chores, shop, and drive for himself. The examiner reported that the Veteran's lumbosacral strain and cervicothoracic strain related to the 1994 ski accident had largely resolved and, at most, would cause only minimal functional limitations. The examiner noted the Veteran currently has lumbar spondylosis and degenerative disc disease of the cervical spine, but these disabilities are not service connected or related to the Veteran's service-connected lumbosacral and cervicothoracic strains as strains involve muscles and ligaments, while spondylosis and degenerative disc disease are a degenerative process of the discs and vertebral bodies. The examiner also specifically noted that strains would not likely have caused the Veteran's current disabilities because they do not involve related systems in the body. The examiner further found that the Veteran's hypertension was now controlled with medication and opined that this would cause no functional limitation, and the Veteran's service-connected tinea cruris had resolved without residuals, and, as the skin was normal at the time of the examination, there was no objective evidence of a current skin disability that would functionally limit the Veteran. The October 2014 VA examiner also completed a psychiatric examination of the Veteran. After completing a Minnesota Multiphasic Personality Inventory (MMPI testing), the examiner found that the Veteran had exaggerated his responses and symptoms and possessed superior intellect based on his vocabulary and Weschler Adult Intelligence Scale - Third Edition testing (WAIS-III testing). The examiner opined, after accounting for the Veteran's exaggerated symptomatology, that the Veteran exhibited social avoidance, instances with domestic violence, and preoccupation with pornography. However, the examiner opined that these symptoms were unrelated to the Veteran's PTSD, and his PTSD stressors were not severe and caused only intermittent inability to perform occupational tasks. The examiner further opined that the Veteran's ski accident, the stressor alleged to be causing his PTSD, was a typical ski accident. The examiner noted it would be illogical to think that the Veteran's violence, preoccupation with pornography, fear of an industrial accident, germ phobia, fear of entrapment, claustrophobia, and other reported PTSD symptoms would be associated with a minor ski accident. In August 2017, the Veteran submitted a statement indicating that he has not worked since leaving his position as a control room operator in March 2003. He notes that his job required being seated or standing all day, occasionally lifting 50 pounds, all of which he was unable to do because of his back pain. The Veteran reported that he began taking medication for his hypertension, which caused him to become lethargic and foggy and he feared he would fall asleep at work and hinder his ability to safely drive. The Veteran also reported that he experienced severe panic attacks and fear of getting trapped in a machine and being by himself, which hindered his ability to complete his work. He also reported that after he was transferred to a less physically demanding position to accommodate his back and neck pain, his anxiety and stress increased because he could not grasp or comprehend the instructions of the new position. Finally, the Veteran submitted a private employability evaluation in October 2017. The examiner who conducted the examination spoke to the Veteran on the phone after review of his claims file, and indicated the opinions included were based on the Veteran's service-connected disabilities. The examiner noted that the Veteran had to be re-directed to answer questions on multiple occasions. The examiner reported that the Veteran displayed PTSD symptoms including depressed mood, anxiety, suspiciousness, panic attacks (two to three per week), sleep impairment, memory loss, difficulty understanding complex tasks, impaired judgment, disturbance of motivation and mood, suicidal ideation, spatial disorientation, inability to establish and maintain social relationships, persistent danger of hurting himself or others, disorientation to time and place, hypervigilance, fear of being alone, and difficulty adapting to stressful circumstances. In regard to his back and neck disabilities, the Veteran reported that he could only sit for 10 minutes or stand for five minutes before experiencing pain, and he indicated he needed help lifting heavy objects. The Veteran reported that he was written up at work for falling asleep on the job and having panic attacks, and after he was transferred from the control room to order clerk, he was still unable to complete the tasks of the job because he could not focus, multi-task, or react to changing conditions. The private examiner opined that the Veteran cannot continue his work as a control room operator as he reported he was to unable to lift heavy objects, focus, multitask or respond to changing conditions. The examiner also opined that his inability to stand or sit for extended periods of time prevented him from completing a full 40-hour work week, even in a sedentary position. The Veteran's claims file also contains the Veteran's SSA records. These records indicate that the Veteran has been disabled since July 2003 based on PTSD with depression and panic attacks, chronic neck and lumbar complaints, hypertension, and sleep apnea. SSA records from May 2004 indicate the Veteran could lift 50 pounds, though he could only lift 25 pounds consistently, and could stand, walk, or sit for six of eight hours with no restrictions on his ability to pull or push. Psychiatric examination revealed that his disability was not severe and there were only mild restrictions on social functioning and maintaining concentration, persistence, or pace. The Board finds the Veteran's hypertension does not hinder his ability to obtain or maintain substantially gainful employment. This is supported by private treatment records from Dr. J. B. Dr. J. B. was treating the Veteran on a regular basis for his hypertension immediately prior to and for the initial six months after the Veteran went on disability from his employment. During that time, Dr. J. B. was working with the Veteran to determine a medication regimen that would control the Vetearn's hypertension, and in July 2003, Dr. J . B. indicated the Veteran would be able to return to work. While the Board acknowledges the Veteran's hypertension was reported to be uncontrolled in some medical treatment records from 2003 to 2004, the Board finds that the Veteran's medical treatment records and VA examinations, including a VA examination in March 2005, indicate the Veteran had not properly taken his medications to treat his hypertension. Additionally, treatment notes from September 2005 indicate the Veteran's doctor noted the conflicting interests in the Veteran getting his hypertension under control as he would lose disability and health insurance from his previous employer if his hypertension was controlled. Private treatment records indicate that the Veteran's hypertension was controlled by approximately July 2003 after the right medciations were identified. Additionally after 2004, once the Veteran began to properly take hypertension medication on a consistent basis, his hypertension became controlled and no longer impacted his ability to obtain and maintain substantially gainful employment. The Veteran's VA examiner in August 2011 repeated these concerns, noting that the Veteran's hypertension readings were adequate when he was seen for non-hypertension related issues, but when seen for hypertension treatment or this examination, the Veteran's blood pressure readings were often elevated. Additionally, the Board notes that the Veteran reported that he had continued to drink alcohol in December 2004, despite being advised that continued alcohol use was discouraged when taking his hypertension medications. The Board finds that the Veteran's PTSD does not hinder his ability to obtain or maintain substantially gainful employment. The VA examiner who conducted the Veteran's October 2014 VA examination, after completing MMPI and WAIS-III testing to assess the Veteran's tendency to exaggerate his symptoms and his overall intellect, noted that the Veteran did exaggerate his symptoms and the Veteran likely had a superior intellect. The examiner additionally opined that the exaggerated PTSD symptoms reported by the Veteran would not likely be related to the minor skiing accident the Veteran reported caused his PTSD. Additionally, though the Veteran consistently reports that the symptoms associated to his PSTD have been consistent since his 1994 skiing accident, the preponderance of the evidence in the Veteran's treatment records do not indicate treatment for or complaints related to PTSD until after the Veteran's high blood pressure flared up in 2003. The Veteran had been able to work a full-time position as a control room operator for many years despite any unreported symptoms related to PTSD up until that time, and while the Veteran's hypertension may have exacerbated his PTSD symptoms, as noted above, the Veteran does not appear to have complied with his treatment for hypertension, causing his hypertension to remain uncontrolled, while also continuing to drink. Furthermore, SSA records indicate the Veteran had only a moderate limitation on his ability to socially function, mentally function maintain concentration, persistence, or pace. Finally, the Veteran's GAF scores, ranging from 41 to 55, are consistent with VA examiners findings that his symptoms are exaggerated and, at most, moderately severe. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Health Disorders (4th ed. 1994) (DSM-IV). A GAF score of 41 to 50 reflects 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, or moderate difficulty in social, occupational, or school functioning. DSM-IV; 38 C.F.R. §§ 4.125, 4.130. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Board finds the Veteran's back and neck disabilities also do not hinder the Veteran's ability to obtain or maintain substantially gainful employment. In 2003, VA examiners noted that the Veteran's back and neck disabilities would impact nonsedentary employment during a flare-up. However, the Veteran only reported one to two flare-ups per year, and even during a flare-up, there did not appear to be any significant impact on the Veteran's ability to obtain and maintain sedentary work at that time. Additionally, May 2004 SSA records indicate the Veteran was able to lift 25 pounds consistently and could walk, sit, or stand for six of eight hours with unlimited ability to push or pull. By June 2004 and August 2011, the Veteran was reporting approximately three to four back flare-ups a year, each lasting approximately two weeks, but he did not use any assistive devices and indicated he had never been incapacitated or prescribed bedrest, though he did note limited ability to walk long distances and lift heavy weights. The August 2011 VA examiner noted that the Veteran's cervical and lumbar strain related to his ski accident which had resolved and did not impact his functional ability. Since discharge from service, the examiner noted the Veteran had been diagnosed with lumbar spondylosis and degenerative disc disease of the neck. The examiner noted that these disabilities were not service-connected. The October 2014 VA examiner further supported the opinions of the August 2011 examiner by reiterating that the Veteran's cervicothoracic strain and lumbar strain were, at most, minimally functionally limiting, and again noted that currently diagnosed lumbar spondylosis and degenerative disc disease of the neck were not service connected or related to the Veteran's service-connected lumbar and cervicothoracic strain as the muscle and ligament injury related to the strains do not involve the same systems as spondylosis or degenerative disc disease, which are related to the discs and vertebral bodies. The Board finds that the Veteran's service-connected tinea cruris does not impact the Veteran's ability to obtain or maintain substantially gainful employment as the October 2014 VA examiner noted that the Veteran's skin was normal, with no current skin disability to cause a functional limitation on employment. Additionally, the Veteran does not seem to contend that a skin disability causes significant limitations on his ability to obtain or maintain substantially gainful employment. The Board acknowledges the Veteran's August 2017 statement where he indicated that his numerous service-connected disabilities caused him to be unable to continue his employment. However, the Board does not find the Veteran's testimony credible as it is in conflict with his other testimony, and the preponderance of the evidence in the Veteran's claims file does not support a finding that the Veteran's service-connected PTSD, and neck and back disabilities hindered the Veteran's employment until his hypertension flared up in March 2003. Additionally, the VA examiner in October 2014 found the Veteran had superior intellect and was exaggerating his symptoms after completing WAIS-III and MMPI testing, supporting the Board's finding that the Veteran's statements as to his symptomatology and it's onset is not credible. The Board also acknowledges the October 2015 private employability evaluation. However, the Board finds the October 2014 VA examination to be more probative because it included MMPI and WAIS-III testing to account for the Veteran's intellect and tendency to exaggerate symptoms. This testing concluded that the Veteran had superior intellect, and the Veteran failed the MMPI, indicating he was likely exaggerating his PTSD symptoms. The private examiner did not question the Veteran's credibility and opined that because of his inability to concentrate, focus, and adapt to changing circumstances, the Veteran was unable to be gainfully employed. Additionally, the private examiner did not physically see the Veteran or conduct an examination of the Veteran, and therefore, relied only on the Veteran's testimony in opining that he was also unable to do sedentary work because of his back and neck disabilities. Finally, the Board also acknowledges that the Veteran has been found disabled by the SSA based on PTSD with depression and panic attacks, chronic neck and lumbar complaints, hypertension, and sleep apnea. The Board notes that decisions of the SSA regarding disability, while relevant, are not controlling with respect to VA determinations, particularly as adjudication of VA and Social Security claims are based on different laws and regulations. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992). In this case, the Board finds the findings and conclusions of VA examiners that the Veteran's service-connected disabilities do not render him unemployable to be more probative for the reasons discussed above. Given the above, the Board finds that the Veteran's service-connected disabilities do not render the Veteran unable to obtain and maintain substantially gainful employment, and therefore, entitlement to TDIU is denied. ORDER Entitlement to a TDIU throughout the appeal period is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs