Citation Nr: 18147192 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-18 674 DATE: November 2, 2018 ORDER An effective date of January 19, 2015, but no earlier, for the award of a 70 percent rating for anxiety disorder is granted, subject to the laws and regulations governing payment of monetary benefits. Entitlement to a rating in excess of 70 percent for anxiety disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, it is factually ascertainable that an increase in the Veteran’s anxiety disorder, corresponding to the assignment of a 70 percent rating, occurred on January 19, 2015, but no earlier. 2. The Veteran’s anxiety disorder has been manifested by occupational and social impairment, with deficiencies in most areas, but not by total occupational and social impairment. 3. The Veteran’s service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 19, 2015, but no earlier, for the assignment of a 70 percent rating for anxiety disorder have been met. 38 U.S.C. §§ 5110, 7104 (2012); 38 C.F.R. §§ 3.155, 3.157, 3.400, 20.1100 (2018). 2. The criteria for a disability rating in excess of 70 percent for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, DC 9411, General Rating Formula for Mental Disorders (2018). 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to August 1990 and October 2004 to January 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and July 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office. In April 2014 and June 2016 substantive appeals, the Veteran requested a travel Board hearing. However, in a July 2018 correspondence, the Veteran, through his attorney, withdrew his request for the travel Board hearing. Accordingly, the Board finds the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704(e). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. Regarding the issue of increased rating for anxiety disorder, the Veteran’s signature on his February 2015 claim, submitted via a VA Form 21-526EZ, indicates that he received VCAA notice. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b). Regarding the issue of TDIU, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in May 2016. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. The Veteran has not identified any deficiency in VA’s notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the effective date issue in this case, this appeal arises from the grant of increased rating for anxiety disorder. Consequently, the original underlying claim was substantiated, and no further notification under the VCAA is required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 1. Entitlement to an effective date prior to February 10, 2015, for the assignment of a 70 percent rating for anxiety disorder The Veteran, through his attorney, asserted in an August 2016 brief in support of appeal that he is entitled to an effective date of January 19, 2015, for the award of a 70 percent rating for his anxiety disorder. As explained below, the Board finds that an earlier effective date of January 19, 2015 is warranted for the award of a 70 percent rating. A May 2011 rating decision granted the Veteran service connection and a 30 percent rating for anxiety disorder not otherwise specified with features of posttraumatic stress disorder (PTSD). The Veteran’s claim for an increased rating for anxiety disorder was received by VA on February 10, 2015. The April 2015 rating decision on appeal granted the Veteran a 70 percent rating for his anxiety disorder effective from February 10, 2015. The April 2015 rating decision granted the Veteran a 70 percent rating based on a March 19, 2015 VA examination report and VA treatment records indicating that the Veteran had difficulty adapting to work, difficulty adapting to a worklike setting, difficulty adapting to stressful circumstances, suicidal ideation, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, occupational and social impairment with reduced reliability and productivity, chronic sleep impairment, anxiety, depressed mood, and mild memory loss. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The Board preliminarily notes a review of the record reveals that there were no other pending, unadjudicated claims for a higher rating for anxiety disorder prior to February 10, 2015. Thus, the Board has determined that February 10, 2015 is the date of receipt of the higher rating claim for anxiety disorder. However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). In this regard, the Board notes in a January 19, 2015 VA treatment record, the Veteran had been brought to urgent care by his girlfriend for active suicidal ideation. The medical provider noted the Veteran had a plan to hang himself in the attic or drink himself to death. The Veteran stated that for the past eight weeks, his symptoms had significantly worsened due to the current conflict with ISIS. The medical provider noted that according to the Veteran’s girlfriend, the Veteran constantly watched the news regarding ISIS, which made him visibly upset and anxious. The Veteran reported poor sleep when he was not drinking, feelings of guilt, decreased energy, decreased concentration, decreased appetite, and suicidal ideation with plan. The Veteran stated that he had been binge drinking every other weekend when he did not have his children. The Veteran stated he had not been eating since Thursday and had not been taking his medications. He reported multiple episodes of nausea, vomiting, and diarrhea since Thursday as a result of his increased alcohol consumption. The medical provider noted the Veteran endorsed manic symptoms at the time of evaluation of elevated mood, racing thoughts, decreased need for sleep, and grandiosity. The medical provider noted the Veteran endorsed PTSD symptoms of nightmares, flashbacks, being easily startled, and avoidance of certain positions in public places. The medical provider noted the Veteran endorsed significant anxiety with occasional panic attacks. The Veteran reported auditory hallucinations which he described as sounding like the radio was on in the background. The Veteran also reported that he was paranoid. He reported he was suspicious of his girlfriend and was also paranoid someone would kill him. The Veteran denied homicidal ideation. Based on the January 19, 2015 VA treatment record, the Board finds that it is factually ascertainable that an increase in the Veteran’s anxiety disorder had occurred as of January 19, 2015 that warranted a 70 percent rating. The Board notes that the law only permits the Board to consider the evidence of record within the one-year period preceding the date of the claim. The Board has reviewed the pertinent medical and lay evidence; however, the evidence does not show that the Veteran’s symptoms rose to the level of severity contemplated by the rating criteria at 70 percent during the one-year timeframe prior to the date of receipt of the anxiety disorder increased rating claim earlier than January 19, 2015. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board has determined that the Veteran is eligible for a 70 percent rating for anxiety disorder as of January 19, 2015, and entitlement to an effective date of January 19, 2015 is granted. However, an even earlier date is not warranted as it is not factually ascertainable that the increase occurred during the one-year period preceding the claim at any time prior to January 19, 2015. To find otherwise would be to engage in speculation. 2. Entitlement to a rating in excess of 70 percent for anxiety disorder Under Diagnostic Code 9400-9411, which is governed by a General Rating Formula for Mental Disorders, a 70 percent rating is warranted 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 work-like setting); and/or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130 Diagnostic Code 9400-9411. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation under the general rating formula, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be due to those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. VA implemented DSM-5, effective August 4, 2014. The Secretary of VA, however, has determined that DSM-5 does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The AOJ initially certified the Veteran’s appeal to the Board in August 2016. The Veteran is currently in receipt of a 70 percent rating for anxiety disorder not otherwise specified, with features of PTSD. The Veteran was provided a VA examination in March 2015. During examination, the Veteran reported that since the last examination, he and his wife had divorced. He stated he had one friend and other than that, he had little social life. The examiner noted the Veteran was not currently working. The examiner noted the Veteran was previously working as an insurance salesman and reported that due to stress, anxiety, and loss of sleep due to nightmares he fell apart. He reported that he became overwhelmed and in January 2015, he was admitted to the Brockton VA medical center due to suicidal ideation after confiding in a friend that he was thinking about suicide. The Veteran was hospitalized for eleven days. He stated that he still experienced suicidal ideation and coped with this ideation by going to group therapy. He reported that since the last examination, he had experienced an increase in the frequency and severity of other symptoms, including panic attacks, hypervigilance, startle response, and nightmares. The examiner noted that since his last examination, the Veteran had an increase in alcohol use to self-medicate and was prescribed naltrexone, which helped him become sober for two months. The examiner noted the Veteran had been involved in counseling and medication management. The examiner noted the Veteran’s symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintain effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. The examiner found the Veteran had occupational and social impairment with reduced reliability and productivity. April 2015 VA treatment records noted the Veteran was oriented to person, time, and place, had presented in casual dress, had good eye contact, and had a calm demeanor with somewhat depressed affect. The medical providers noted the Veteran’s speech was normal, his thought processes were linear and goal-directed, content was non-delusional, and there was no evidence or report of hallucinations. The Veteran did not report any suicidal or homicidal ideations. In a February 2016 VA examination, the Veteran reported that since the last examination, he had married and described his wife as his best friend. He stated that he had one friend and other than spending time with family, he had few social outlets and had no hobbies. The examiner noted the Veteran had worked as a construction laborer since May 2015. The Veteran reported that he continued in counseling and medication management and that he had been working but as in the past, his symptoms were beginning to impact his job performance. The examiner noted that a review of treatment notes shows that the Veteran’s symptoms were still evident but overall remained stabilized. The Veteran stated he remained sober. The examiner noted the Veteran’s symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. During examination, the examiner noted the Veteran arrived on time, was casually dressed and appropriately groomed, was oriented to person, time, and place, was pleasant and cooperative, and maintained good eye contact through the interview. The examiner noted the Veteran’s affect was appropriate to content, there was no psychomotor abnormality, his speech was normal in rate, volume, and tone, his thought processes were linear and goal-directed, his attention, concentration, and memory were all intact, and his insight and judgment were good. The examiner noted there was no evidence of psychosis and the Veteran denied suicidal ideation and homicidal ideation. The examiner found the Veteran had occupational and social impairment with reduced reliability and productivity. April 2016 VA treatment records noted the Veteran had requested admission approximately 15 hours after his last discharge from the same hospital. He stated he was not having any psychosis but that he experienced a little depression, a little anxiety, and a severe amount of paranoia. He described the paranoia as being centered on feeling like someone was after him and wanting to hurt him. He felt like something was going to go wrong. The providers noted the Veteran had a rapid relapse into drinking that seemed to be triggered by a wreck which exacerbated his PTSD symptoms. The providers noted the Veteran was perseverating on an incident in which his car hydroplaned and he hit a snow plow. On mental status examination, the medical providers noted the Veteran was dressed appropriately, was cooperative, maintained eye contact, and had coherent speech with normal rate, volume, and tone. The providers noted the Veteran’s thought processes were reality oriented and goal-directed. The Veteran denied delusions and denied suicidal or homicidal ideation, intent, or plan during evaluations. The Veteran’s mood was noted as euthymic and his affect was noted as normal for situation, in full range. The providers noted the Veteran’s cognitive function was intact but that the Veteran had impaired judgement and insight. May 2016 VA treatment records noted the Veteran appeared in casual clothing, made good eye contact, was in a euthymic mood, and had some sad affect about arguments with his wife. The Veteran indicated that he remained abstinent from drinking and had been mostly without urges as he was still living with his wife, yet has had painful internal triggers with interpersonal conflict. The medical provider noted the Veteran was sober and denied suicidal ideation and homicidal ideation. The provider also indicated that no mania was noted and thought processes were linear and goal-directed. In an August 2016 VA treatment record, the Veteran reported that since the last VA examination, he and his wife had separated. The Veteran stated that he continued to be socially isolated. He reported that he had a good relationship with his two younger children but had a strained relationship with his older children. The Veteran stated he enjoyed doing work around the house. He reported that since leaving his construction job in July 2016, he had started to study for a job at a financial company. He reported that when he was working in construction, he had an accident with his truck and he had gotten into a disagreement with the police officer who was on the scene. The Veteran reported that afterward, he knew it was time to leave the job as his stress and anxiety was affecting him on the job. The examiner noted that the Veteran had a self-admission to the Brockton VA medical center in April 2016 due to his alcohol use, suicidal ideation, and anxiety and that since then, the Veteran had remained in individual and group counseling and medication management. When asked to describe what symptoms had changed since the last examination, the Veteran reported anxiety, depression, sleep problems, concentration problems, and increased alcohol use. The examiner noted the Veteran’s symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. During examination, the examiner noted the Veteran arrived on time, was casually dressed, and appropriately groomed, was oriented to person, time, and place, was pleasant and cooperative, and maintained good eye contact throughout the interview. The examiner noted the Veteran’s affect was appropriate to content, there were no psychomotor abnormalities, his speech was normal in rate, volume, and tone, and his thought processes were linear and goal-directed. The examiner noted the Veteran’s attention, concentration, and memory were all intact and his insight and judgement were good. The examiner noted there was no evidence of psychosis and the Veteran denied suicidal ideation and homicidal ideation. The examiner found that there had been an increase in the symptoms reported by the Veteran and that these symptoms had negatively impacted his occupational and marital functioning. The examiner noted the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In September 2016 VA treatment records, the medical providers noted the Veteran’s strengths and abilities. Specifically, the providers noted the Veteran’s cognition was intact, he had the ability to work effectively with other people, was employed, was a hard worker, had good health, was organized or a good planner, and was open minded. The Veteran had attended individual psychotherapy sessions in which he shared that he had been doing pretty well but voiced that he had resumed drinking. The Veteran indicated that he had been busy with work, home repairs, and taking care of his children. The provider noted that the Veteran appeared to trust himself more in being able to take care of himself and also feeling better about himself due to work and work performance. The Veteran appeared to sessions in casual clothing and made good eye contact with euthymic mood. The Veteran denied suicidal ideation, there was no mania noted, and thought processes were noted as linear and goal-directed. An October 2016 VA treatment record noted the Veteran was still working but that it was very stressful. He reported that his job was challenging and performance-driven. The provider noted the Veteran continued to engage in some good self-care; however, he shared that he was having a lot of anxiety and said that he was drinking. The Veteran reported feeling heaviness from the demands of his new employment that he found enjoyable. The provider noted the Veteran seemed quite frightened of his thus far inability to control his drinking. The provider noted that the Veteran was aware that when he drank, he got depressed. The provider noted there was no mania noted, thought processes were linear and goal-directed, and the Veteran denied suicidal ideation. November 2016 and December 2016 VA treatment records noted the Veteran came into his individual psychotherapy sessions appearing in casual clothing, making good eye contact with anxious mood with frightened and sad affect. The providers noted the Veteran continued to drink but was still working and taking care of responsibilities. The providers noted the Veteran seemed exhausted and stretched from his daily drinking and work. The Veteran denied suicidal ideation, there was no mania noted, and thought processes were noted as linear and goal-directed. January 2017 VA treatment records show that the Veteran was dropped off by one of his ex-wives and daughter for alcohol detox and mood symptoms. The providers noted the Veteran had suicidal ideation with no plan. The Veteran denied homicidal ideation, hallucinations, delusions, psychosis, and mania. The providers noted the Veteran had depressed mood, sleep impairment, decreased interest, guilt about drinking, decreased energy, decreased concentration, and decreased appetite. On mental status examination, the providers noted the Veteran was cooperative and friendly, had regular rate and rhythm in speech, had appropriate eye contact, had linear and goal-directed thought processes, had congruent affect with mood, was oriented to person, time and place, had poor to fair insight and judgement, and had poor impulse control. The provider during initial evaluation noted the Veteran came in his pajamas, smelled of alcohol, and was crying. During his course of stay for detox from alcohol, the providers noted the Veteran did not appear to present any danger to himself or others. The Veteran denied suicidal or homicidal ideations and demonstrated appropriate behavior and impulse control. The Veteran expressed a lot of guilt of not being able to maintain his sobriety and reported that he had been separated from his wife for a period of time due to his problems with alcohol. He indicated that recently, they had started dating again and he hoped that his marriage still had a future. The record noted that prior to his discharge, the Veteran showed no signs of major psychiatric disturbance, he denied any racing thoughts, feeling of guilt or hopelessness, and he did not demonstrate any signs of thought disorders. The Veteran denied auditory or visual hallucinations, paranoia, and suicidal or homicidal ideation. A February 2017 VA treatment record noted the Veteran appeared more stable. During evaluation, the provider noted the Veteran’s mood was euthymic, had better range of affect with some sadness and appropriate crying, but that the Veteran was able to joke and laugh. The provider noted the Veteran had good eye contact, had no mania, and had linear and goal-directed thought processes. The Veteran denied suicidal and homicidal ideation. The preponderance of the evidence of record demonstrates that the Veteran’s psychological symptoms do not, and have not at any time during this appeal, reflected total occupational and social impairment as envisioned by the regulation. Such conclusion is consistent with the evidence which reflects major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The Veteran has contended he was unable to work because of his symptoms. He has, however, worked intermittently during the appeal. The Veteran’s judgment and thinking had included suicidal ideation and were noted to be deficient. His mood was variously anxious and depressed. However, the record has not shown the Veteran has experienced symptoms such as persistent delusions or hallucinations, gross impairment in thought processes or communication, disorientation to time or place, or significant memory loss. The Veteran has also consistently maintained personal appearance and hygiene. The Veteran was not in a persistent danger of hurting self or others. In so finding, the Board acknowledges the Veteran’s intermittent suicidal ideation that was usually consistent with his relapse into drinking. However, the Board notes that the Veteran is not service-connected for alcohol use disorder. The symptomatology described is more consistent with the type and degree of symptoms, and the effects of such symptoms on the Veteran’s social and occupational functioning, for a 70 percent rating rather than a higher rating. The VA examiners in March 2015, February 2016, and August 2016 summarized the Veteran’s symptoms according to the diagnostic criteria for a 70 percent rating. Overall, when considering the frequency and severity of his symptoms, the Board finds that a rating in excess of 70 percent is not warranted. The Veteran’s symptoms indicate serious impairment in both social and occupational functioning, and have even been described as interfering with his work; however, no examiner has indicated that the symptoms were severe enough to result in total occupational and social impairment. The Veteran has maintained relationships with his children and significant others, albeit at times strained relations. Nevertheless, there is no evidence showing total occupational and social impairment. Accordingly, the Board finds that a 70 percent evaluation for the Veteran’s anxiety disorder during the course of the appeal is appropriate, and a higher rating is not warranted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran is seeking a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). However, the Board has no authority to assign a TDIU rating under 4.16(b) in the first instance and may only refer the claim to the Director of Compensation Services for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). During the current period on appeal, the Veteran is service connected for anxiety disorder not otherwise specified with features of PTSD, rated as 70 percent disabling, tinnitus rated as 10 percent disabling, and hearing loss rated as noncompensably disabling. The combined rating for his service-connected disabilities is 70 percent. As such, the Veteran meets the minimum percentage rating required for consideration of assignment of schedular TDIU. 38 C.F.R. § 4.16(a). The Veteran asserts that he is unable to obtain and maintain substantially gainful employment due to his service-connected anxiety disorder. The record reflects that the Veteran initially raised a claim for a TDIU in his July 2015 notice of disagreement pertaining to his anxiety disorder claim. Turning to the evidence of record, in an August 2016 brief in support of the appeal, the Veteran, through his attorney, asserted that his anxiety condition had caused a significant drop in his annual income and that since his discharge from service, he had struggled to maintain consistent employment. The brief indicated that since 2013, the Veteran has had three jobs with the longest tenure being ten months. The Veteran indicated in his application that it was very difficult to stay employed because of missed time and anxiety. The brief highlighted the May 2015 VA examination in which the examiner noted that since the last examination, the Veteran had resigned from several jobs and was not currently working. The brief also highlighted the March 2015 VA examination in which the examiner noted the Veteran was working as an insurance salesman and reported that due to stress, anxiety, and loss of sleep due to nightmares, he was falling apart and overwhelmed and had been admitted to the Brockton VA medical center in January 2015 due to suicidal ideation. The brief highlighted that in a February 2016 VA examination that the examiner noted the Veteran was working as a construction laborer but that his symptoms were beginning to impact his job performance. The brief stated that from March 31, 2016 to April 4, 2016, the Veteran was hospitalized again after attempting suicide and that during the hospitalization, he reported that he felt stuck in a cycle of anxiety and worried that something bad was about to happen and that when he felt vulnerable, he did something stupid and felt angry. The brief also referenced a July 2016 report conducted by a vocational expert that reviewed the Veteran’s records and opined that the Veteran has been unable to obtain or maintain substantially gainful employment. In a March 2017 statement, the Veteran stated that working with his service connected disabilities had been near impossible for him and that since he lost his career in 2009 and after a period of unemployment, he has had five jobs since 2012. The Veteran stated that he left each job because of his inability to stay at the job site, his need to take time away for inpatient treatment and medical appointments at VA, his arguments with other employees and supervisors, and his anger at being disciplined for taking time off for his mental health needs. He reported that he was currently employed as a Veteran sensitive employee and although the company had a high standard of conduct, they understood that he needed to leave work when he was stressed and anxious. He stated that he lost a week of work due to inpatient hospitalization but his employer was okay with that as well as letting him take off as needed to go to medical appointments and therapy sessions. He indicated it was all okay as long as he was honest with balancing his work day with his mental health needs. The Veteran stated that no other employer that he has had has been able to make these accommodations for him. As noted above, the Veteran meets the percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). Therefore, the remaining question is whether his service-connected anxiety disorder precludes him from engaging in substantially gainful employment for the period on appeal. See Moore v. Derwinski, 1 Vet. App. 256 (1991). In determining whether a veteran is indeed unemployable, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board finds that the evidence shows the Veteran is not unemployable due to his anxiety disorder. The Board preliminarily highlights that the Veteran and the evidence of record have not indicated that the Veteran’s hearing loss and tinnitus have affected his employment capacity. The Veteran has maintained that his anxiety disorder has been the main disability affecting his ability to work. Initially, the Board notes that the Veteran is a college graduate with a master’s degree in business administration. The Veteran also had indicated in an August 2016 VA treatment record that he had been engaging in intensive studying as part of the training requirements for his current job. The Veteran has generally been shown to be working or at least to have the ability to work. While the Veteran asserted his inability to maintain employment due to his anxiety disorder, in his March 2017 statement, he reported that he had been working with his current company with certain accommodations, and in February 2017 VA treatment records he reported that had been highly motivated to do well in his career and that work had been going well. The Board acknowledges the July 2016 vocational assessment that found the Veteran was unable to maintain substantial gainful competitive employment on a regular and consistent basis. However, the Board notes that the vocational evaluator did not adequately consider the Veteran’s periods of employment, especially the current employment in which the Veteran, with some minor accommodations, had reported doing well. Additionally, the March 2015, February 2016, and August 2016 VA examination reports have not concluded that the Veteran’s service-connected anxiety disorder was manifested by total occupational impairment. A December 2016 Social Security Administration disability determination also found the Veteran was not disabled. Although the Veteran reported that he was permitted to leave work as necessary for treatment, the evidence does not show that his employment can be considered a sheltered workshop, such as a place that provides rehabilitation services, day treatment, training, or employment opportunities to individuals with disabilities. The Board is unable to conclude that the Veteran’s full-time employment qualifies as sheltered or marginal employment. The evidence shows that he is maintaining employment, with accommodations, despite the service-connected disabilities. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected anxiety disorder or his other service connected disabilities of hearing loss and tinnitus are sufficient to produce unemployability. Although his anxiety disorder produces significant impairment, the evidence does not reflect gainful employment is precluded solely due to his service-connected disability. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). After a review of the evidence of record, the Board finds that the claim for entitlement to a TDIU is not warranted when considered in association with the Veteran’s educational attainment and occupational background. In sum, the Veteran’s service-connected disabilities have not been shown to preclude him from gainful employment. Thus, the preponderance of the evidence is against the Veteran’s claim for a TDIU. There is no reasonable doubt to be resolved as to this issue, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel