Citation Nr: 20073485 Decision Date: 11/17/20 Archive Date: 11/17/20 DOCKET NO. 14-35 347A DATE: November 17, 2020 ORDER A 50 percent disability rating for anxiety disorder prior to November 2, 2018 is granted; a rating higher than 50 percent is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. For the entire initial rating period on appeal, the Veteran’s service connected anxiety disorder has been manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity due to symptoms of anger, irritability, hypervigilance, chronic sleep impairment, mild memory loss, anxiety, social withdrawal, poor appetite, depressed mood, anxiety, suspiciousness, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting; deficiencies in most areas is not shown. 2. As of October 1, 2009; the Veteran meets the schedular requirements for a TDIU, but his service-connected disabilities alone do not preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for disability rating of 50 percent for the entire period on appeal, but no higher, for anxiety disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9413. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board recognizes that VA treatment records were added to the file after the issuance of the July 2019 supplemental statement of the case. However, VA communicated with the Veteran and his representative and a letter dated August 2020 shows that a review by the Agency of Original Jurisdiction has been waived. The Veteran testified before the undersigned Veterans Law Judge in an October 2018 Travel Board hearing. A transcript of that hearing has been associated with the file. The Board remanded the matter in April 2019 for additional development. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. Increased Disability Rating Psychiatric disabilities, such as anxiety is evaluated under the General Rating Formula for Mental Disorders (pertinent portions listed below). See 38 C.F.R. § 4.130, Diagnostic Code 9413. Under the General Rating Formula for Mental Disorders, a 100 percent disability rating requires 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; or memory loss for names of close relatives, own occupation, or own name. Id. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. Id. A 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 30 percent disability rating requires 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). Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The Veteran’s anxiety disorder is rated as 30 percent disabling prior to November 2, 2018, and 50 percent thereafter. He contends that his symptomatology is more severe than contemplated by the disability ratings assigned. The Veteran filed his claim for service connection in October 2009. As such, the appeal period commences October 2009. The Veteran has received mental health treatment at VA and from private providers throughout the appeal period. During the appeal period, he received two VA examinations and has participated in several individual therapy sessions as well as group sessions for his anxiety disorder. The pertinent information from treatment and the examinations will be summarized below. An April 2010 private medical note illustrates that the Veteran presented 25 minutes late for the session. He spent most of the session focused on his current work at the U.S. Census Office. He described an incident involving conflict with a coworker. Conflict with others was a pattern for him that is likely related to his problems adjusting to civilian life and anger related to PTSD. His insight into why the coworker became upset was somewhat limited. He was open to the process of investigating his interpretation of the situation and his involvement in the conflict. He would continue to process his isolation and physical/psychological correlates. A May 2010 private medical note shows that the Veteran was on time for the session. An attempt was made during the session to help him cope with the disappointment and stress related to having his PTSD claim denied and with the VA and other conflicts in his life. He reported losing 24 pounds in the last month, and was not sure of the cause of the weight loss. He would return to his doctor for additional testing. He would continue to process his isolation and physical/psychological correlates. An October 2010 VA mental health psychotherapy note shows he had some relief to his foot pain, which in turn has helped improve his attitude and mental health functioning. He discussed a renewed relationship with his mother and relationship with his girlfriend and her child. He discussed his perception of his anger issues, admitting he gets angrier with those close to him. “It’s not a good thing, so I need to work on that aspect of my personality.” Upon mental status examination, the Veteran was oriented to four spheres, mood and affect appeared slightly tense at the start of the session, but more relaxed at the end of session. He did not report suicidal/homicidal ideation, hallucinations, or self-mutilating behavior. Thought process was liner, and insight and judgment were good. He had no difficulty verbalizing and eye contact was good. He was dressed appropriately for the weather. A November 2010 VA mental health psychotherapy note shows he reported increased depression during the Thanksgiving holiday due to it being the first holiday he had been with his family after his father’s death. He spoke about his grief associated with his father’s death. A January 2011 VA mental psychotherapy note shows he spoke at length about his physical health issues and inability to engage in activities due to his health issues, and the resulting increase in his depression and PTSD symptoms. He reported two recent verbal altercations, one with his neighbors and one with a man he thought was “casing” his mom’s house. He and his girlfriend were going to end their relationship. He reported a slight decrease in his stress level because of that. Another January 2011 VA mental health note described his depression as often with low motivation and “no purpose.” He did not endorse suicidal or homicidal ideation. He reported irritability, poor appetite (lost 50 pounds in a year), and poor sleep due to pain. He was unemployed. A February 2011 VA Mental Psychotherapy note shows he spoke at length about his physical health issues (pain in ankles, feet, mouth-had molar removed). He discussed his ongoing issues with getting service connection for dental, PTSD, etc. He discussed, at length, his relationship difficulties with his mother and girlfriend. He severed ties with his mother due to a relationship she had with a man he described as “an enemy of mine.” During the April 2011 VA examination, the Veteran endorsed nightmares. He dreamt of either getting shot down or being responsible for having the wrong plane shot down. He awakened easily in the middle of the night by any noise. When asked about what he does socially, he stated that he has not been out for anything but medical appointments, four times in the past five months. He denied anxiety, but stated that he worries. He was raised in various locations as his father was in the Air Force. He was married once for less than a year. His wife left him while in Germany. He had a girlfriend, but they recently separated; although they were talking about going to couples counseling. He was estranged from his mother for the eight years following the death of his father. They were able to improve their relationship. He felt his father died from an overdose of pain medication given to him at a hospital and this bothered his mother as she authorized the medications. He denied any alcohol or drug use. He was not working. He worked in 2007. He was capable to perform his activities of daily living (ADLs), routinely and independently. Upon mental status examination, the Veteran was alert and oriented to personal information and place. He made good eye contact. Temporal orientation was normal. Insight was not well demonstrated. Affect was blunted. Response latencies were very quick. He demonstrated adequate attention. He was not distractible. Spontaneous speech was full and grammatic and free of “paraphasias.” Immediate and remote memory were all within normal limits. He was logical and goal directed. He reported dysphoria. Decreased self-esteem, sleep difficulty, and social withdrawal were indicated. He denied suicidal ideation or plan. He denied homicidal ideation or plan. Anxiety was shown. There was no evidence of disorder in thought process or content, nor did he exhibit grandiosity or irritability. There was significant pressured speech. The examiner concluded that the Veteran’s psychiatric orientation resulted in moderate impairment in occupational functioning. His overall level of disability was moderate. He was competent to manage his funds. The April 2011 VA examiner provided an addendum in May 2012. He clarified that the diagnosis in Axis I is anxiety disorder. A September 2011 VA mental health outpatient note shows that he lives by himself. He isolates from others to avoid conflict. He was afraid of getting upset and hurting others, although there is no prior history of violence of problems with the law. He was at odds with his mother and girlfriend. He did not do things he used to enjoy. He used to ride motorcycles. The last time was over two years ago. He reported a history of suicidal decompensation back in 2010 when his “o/p psych left him he was on a lot of pain meds and had been prescribed high doses of testosterone and broke up with his g/f he became tearful, afraid of decompensation and so scared he gave up his gun.” He denied suicidal and homicidal ideations, and had no plans or attempts. He reported constant pain in his feet and right knee which impacted his ability to concentrate and interact with others. He reported isolating to the point of self-disregard and skipping meals, medicines, and taking care of his ADLs. During November 2011 VA mental health treatment visit, he stated “not really” in response to whether he had suicidal and homicidal ideation. His ex-girlfriend called law enforcement on him about three to four weeks prior. He was estranged from family. He isolated. His appetite was described as “not good.” A November 2011 VA mental health outpatient note shows he reported continued frustration at having his PTSD claim denied for the second time. He still had restless sleep, never more than four hours. He had a decreased ability to tolerate frustration. He was still at odds with his mother and ex-girlfriend. He remained irritable and was always scouting his surroundings and had a strong hyper startle reaction to loud, unexpected noises and being approached from behind. He denied suicidal and homicidal ideation. He was concerned that he has not been able to find work since 2007 and worried that if he did, he may not be able to maintain it. An April 2012 mental health medication management note shows he reported symptoms of severe sleep disturbance with nightmares, frequent awakening, and agitation so severe in his sleep that he has kicked things over and on one occasion he bruised himself badly. He denied suicidal ideation. A June 2012 VA mental health outpatient note shows he reported increased headaches since last visit. He associated it with the increased dose of venlafaxine. He denied suicidal ideation and stated he would never commit suicide due to religious reasons. He acknowledged some depressed mood in the past and stated he does not want to become depressed again. He reported recent difficulties with concentration and memory. The MST previously reported was an unwanted sexual advance, which was not causing him anxiety or psychiatric problems at present. He was alert and oriented to four spheres. His attention and concertation were grossly intact. His short-term and long-term memory were also grossly intact. During a February 2013 VA mental health visit, he reported that his health was better. He found out the source of the pain. He described continuing issues of “losing control.” He was labeled as a belligerent customer at the AFB Exchange. He collected weapons as a hobby. He expressed ideas of suspiciousness of others. He slept three to four hours nightly. He denied suicidal and or homicidal ideation. A May 2013 VA mental health outpatient note shows he had a fainting episode in April, attributing it to his pain problems. He was working on better self-management. He isolated from others. He was preoccupied with his VA appeal. An April 2014 VA mental health phone note shows the Veteran is requesting to be assigned to a psychologist. “All I can do with a social worker is vent, and I’ve done that with you over the phone; I feel I need a psychologist for therapy.” A June 2015 VA social worker note indicated that the Veteran was divorced and lived alone in a house. He had a friend and one daughter. He needed help with meal prep and laundry as he cannot stand for long periods of time. His sister would come from Atlanta to help him. A December 2015 VA rehab psychology note showed that during his chronic pain support group, he talked about losing his brother-in law, neighbor, and dad. He discussed how his health issues and pain complicated his grief. An April 2016 VA record shows correspondence from the Veteran where he conveyed his suicidal thoughts to Rheumatology and the MHC. A June 2016 VA ER department note shows that he presented with chronic “midepigastric” pain. He indicated that he feels suicidal secondary to the pain and that his spouse stated he has been verbalizing “giving up” secondary to his chronic abdominal pain. He felt suicidal for the last several days and has contemplated overdose. A June 2016 VA nursing note shows he stopped taking Lyrica. He was unable to focus and did not feel confident in making his own decisions. His sister and girlfriend had been staying with him and checking on him. A June 2016 VA mental health suicide risk assessment note shows that he has had thoughts of harming or killing himself in the last month. It started in September, after taking Lyrica. The thoughts were fleeting without plan or intent. Suicide risk was described as low. A June 2016 VA mental health note shows that he previously presented to the ER with epigastric pain and suicidal thoughts due to the severity of the pain. He later denied that he would ever harm himself. He stated this was to show how severe the pain has become. He was future oriented and goal directed. During a July 2016 VA visit he denied any problems with psychosis. He had a lot of anxiety around his physical symptoms. He reported that Lyrica caused suicidal thoughts and those thoughts stopped when he was off Lyrica. During a July 2016 VA mental health outpatient psychiatric visit, he stated “I’ve been having a lot of anxiety.” He took medication related to pain in his legs and then had trouble breathing and ended up in an ICU. He reported that it was an unintentional overdose of “coreg.” “Reports fentanyl in 2010.” He was estranged from his family for years, but now reached out to his family more. His girlfriend stated he does not eat unless instructed to eat. His personality changed in the last years and he had a decrease in functioning. He was starting to forget things. He had trouble driving due to difficulties focusing. They both reported an ongoing battle related to service connection. A November 2016 VA mental health outpatient attending note shows that he was beginning anger management class next week. He was learning how to back up and not lose control. He also approached his medical issues with less anxiety. He distanced himself from his girlfriend due to problems. He denied suicide attempts. He valued his life. The incident that happened recently looked like he mixed up his medications. A February 2017 VA mental health medication management note illustrated the ongoing physical issues. He denied any suicidal ideation involved in overtaking pain medication last summer and stated that he was very careful now with all his medications. August 2017 and November 2017 VA progress notes show that he continued to feel he was unable to work in the areas he wants. He denied an increase in suicidal ideation. During a March 2018 VA mental health outpatient psychiatric visit, he reported “[f]eeling really down, a lot of anxiety.” He reported a recent car accident, which caused increased pain and increased anxiety. He was limited physically. He enjoyed movies, but not lately. He was more reclusive lately and more anxious in crowds. He visited his girlfriend, but noted they argued a lot. He worried a lot. He endorsed symptoms of low energy, good appetite, poor concentration, and irritably. A May 2018 letter authored by a private doctor shows that the Veteran has been under this doctor’s care and treated for his PTSD. He had ongoing problems described as recurrent and intrusive distressing recollections of the event, nightmares, flashback, feelings of a foreshortened future, difficulty with sleep, difficulty concentering, hyper-vigilance, and an exaggerated startle response. His symptoms were managed with medication. An August 2018 VA pain psychologist assessment note shows that he had an estranged relationship with his 81-year-old mother. His father passed away in 2002 from cancer. He has been unemployed since 2007. He was a career school counselor. Has two master’s degrees. He has been divorced since 1980. He has a distant relationship with his daughter. A September 2018 VA mental health psychiatric follow up note shows that he started back on medication and he reports that it has helped reduce his anxiety and irritability. He was sleeping four to five hours a night. He reported that he found out a few weeks ago that he has a son and grandson and he is looking forward to meeting them. During the June 2019 VA examination the examiner listed the mental disorder diagnosis as unspecified anxiety disorder. Additional diagnoses relevant to the understanding or management of the mental health disorder were listed as chronic sinus condition, foot injuries, and chronic neck and back pain. He lived alone. He noted daily interactions by phone with a long-distance friend who also served in the military. He had a strained relationship with his mother and sister. He was not involved in any community activities. He spent most of his time engaged in solitary activities at home. He has been unemployed since 2007. He worked as an educator following his return to the civilian sector but due to concentration disturbances, he had difficulty retaining information and was not successful in obtaining recertification. He noted periods in which he experienced suicidal ideation, but he felt it was attributed to the side effects of his medication such as during treatment with Lyrica. He noted an accidental overdose with fentanyl, “coreg,” and Lyrica in 2015. He was not suicidal or homicidal at the time of the assessment. He denied a prior psychiatric hospitalization. He was referred to anger management in the past. He noted three incidents in which he was involved with local law officers beginning in 2011. He was cooperative throughout the assessment. There was no evidence of psychotic symptoms. The symptoms for VA rating purposes were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. In the remarks section of the report the examiner stated, the Veteran had symptoms of unspecified anxiety disorder that continued to impact his social and occupational functioning, secondary to chronic and anxious and depressed mood, intermittent irritable mood, difficulty coping with stressors, social withdrawal, a distrust of others, chronic sleep disturbances, and concentration disturbances. He was not suicidal or homicidal at the time of the assessment. He was encouraged to continue with mental health treatment. The VA examiner concluded that the Veteran’s level of impairment resulted in occupational and social impairment with reduced reliability and productivity. During an August 2019 VA mental health group session, he explained how he dealt with the loss of his mother while engaging with his sisters, which was never easy. A June 2020 mental health outpatient psychiatric follow up note shows that he was recovering from spinal surgery, dealing with social distancing, been stressed, and worried about Covid. He was now estranged from his sisters over conflict involving his mother’s estate. His mood was depressed “for a really long time.” He had little enjoyment lately in the context of Covid and surgery recovery. He joked that he was taking it “one hour at a time.” A June 2020 VA mental health crisis intervention note shows that a third party phoned in to express concern for the Veteran who was with her/him at the time of the call. He is in “bad shape” and underwent surgery two weeks ago. He was depressed and did not want to take medications or eat food. He was depressed and “doesn’t have a will to live,” “not that he wants to commit suicide.” The caller was uncertain if the Veteran had homicidal ideation. The caller had been friends with Veteran for over 25 years. The Veteran accidently overdosed on medication in the past and he may be experiencing similar thoughts. A July 2020 VA mental health psychotherapy note shows that the Veteran denied suicidal and homicidal ideation. He focused on his recent dysfunctions with his girlfriend. The Board notes that when the RO increased the disability rating to 50 percent, they assigned the effective date of November 2, 2018. That is the date they stated they received the Veteran’s intent to file a claim. However, on review of the record it is clear that the rating decision on appeal is dated May 2012. The Veteran filed his claim in October 2009. As such, the appeal period commences October 2009 and the question before the Board is whether higher ratings are warranted at any time during the appeal period. The Board finds that a 50 percent rating, but no higher, is warranted for the entire period on appeal. However, the preponderance of the evidence does not support a rating higher than 50 percent at any time during the period on appeal, despite the Veteran’s endorsement of suicidal ideation at times during the appeal period. The VA mental health treatment records and private treatment records consistently show that upon examination the Veteran was alert, oriented, dressed appropriately, cooperative, logical and goal directed, insight and judgment were good. At no time did he report auditory or visual hallucinations. He consistently denied suicidal ideation. However, there are times during the appeal period where suicidal ideation was shown. During those times the suicidal ideation was linked to the Veteran’s physical pain or to his prescribed medication. The most probative evidence of record illustrates that the severity of the Veteran’s anxiety disorder warrants a 50 percent rating, and no higher. Throughout the appeal period the Veteran’s anxiety disorder was not manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas due to such symptoms as obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. In fact, the April 2011 VA examiner concluded that the Veteran’s level of impairment resulted in moderate impairment in occupational functioning, which is more consistent with a 30 percent rating. The June 2019 VA examiner concluded that the Veteran’s level of impairment resulted in occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating. Socially, the Veteran maintained relationships with friends and some family members, although moderately impacted by his psychiatric symptoms. The Veteran endorsed some difficulty adapting to stressful circumstances, especially when involving his physical ailments. Even so, the totality of his symptoms is not of a similar nature, type, severity, and duration as those associated with a 70 percent rating. Indeed, his anxiety and worries impacted him during the appeal period, but the Board cannot find that he occupational and social impairment with deficiencies in most areas as required for a 70 percent rating. As indicated above, the record indicates suicidal ideation as early as 2010. In Bankhead, citing from various sources, the Court first looked at how the term “suicidal ideation” is defined. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Court summed it up stating that “both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.” Id. at 20. In applying the meaning of suicidal ideation to the rating criteria, the Court noted that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. There are no analogous at the lower evaluation levels and there are no descriptors, modifiers or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of “active” suicidal ideation, “passive” suicidal ideation, suicidal “intent,” suicidal “plan,” suicidal “prepatory behavior,” hospitalization, or past suicide attempts). Id. Thus, the Court found “the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Id. The Court then turned to the specifics of the case in Bankhead. The Court found that, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. Id. at 20. The Court found that the Board erroneously grafted the risk of self-harm onto the symptom of suicidal ideation in the criteria for a 70 percent evaluation. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm to establish the criteria of suicidal ideation. Id. at 20-21. The Court also found that the Board erred in applying “hospitalization” as the standard for assessing the severity of that symptom. Id. at 21. Rather, the evaluation of mental disorders requires consideration of the effects of each of the veteran’s mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations and his other symptoms are of the nature, severity, and frequency to cause occupational and social impairment with deficiencies in most areas. The VA treatment records that illustrate any suicidal ideation clearly relate it as due to physical pain and or as a side effect of prescribed medication. At no point was the suicidal ideation described as active with thoughts of self-directed violence and death. There was no indication of a plan or intent to harm. The Board recognizes that there was an incident involving overdosage of medication. However, there is no showing that the Veteran intended on overdosing, let alone intended on causing himself harm or death. Any mention of an overdose has been described as “mixed up medications” or “accidently overdosed.” In the February 2017 VA treatment note, the Veteran clearly denied any suicidal ideation involved in overtaking pain medication and stated that he is very careful now with all medication. Additionally, most of the mental health treatment records show that the Veteran denied suicidal ideation, with the most recent VA treatment record dated July 2020. Lastly, suicidal ideation is one factor to consider when assigning a 70 percent rating and the record does not show any other symptoms that would warrant a 70 percent rating. His symptoms did not rise to a level of causing occupational and social impairment with deficiencies in most areas, even considering all the symptoms outlined above. Therefore, the Board finds that the Veteran’s anxiety disorder more nearly approximated the criteria for a rating of 50 percent and no higher. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran. The Board understands his belief that his symptoms warrant a disability rating higher than 50 percent. Even considering the Veteran’s reports, the most probative evidence shows occupational and social impairment as evidenced by his 50 percent rating, but it does not show that he has occupational and social impairment with deficiencies in most areas due to his anxiety symptoms. The Board finds that the Veteran’s deficiencies must be “due to” symptoms listed for that rating level, “or others of similar severity, frequency, and duration.” Vasquez-Claudio, 713 F.3d at 117. The symptoms noted during the VA examinations and the VA and private treatment records during the appeal period are of similar severity, frequency, and duration of those noted under the criteria for a 50 percent rating. Therefore, a 50 percent rating, but no higher, for his service-connected anxiety is warranted for the entire appeal period. The preponderance of the evidence is against a rating higher than 50 percent. TDIU Total disability will be considered to exist where there is present any impairment of mind and 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The Veteran filed a claim for a TDIU in February 2016. In VA Form 21-8940, he claims that his service-connected foot, spinal, and IBS disabilities prevented him from securing any substantially gainful occupation. He contends that these disabilities impacted his ability to work full time as of May 2005. He listed the date of October 2012 as the date he last worked full time and the date he became too disabled to work. He indicated that the last time he worked was in December 2015. As of October 31, 2019, the Veteran has been awarded a 100 percent combined rating; rendering moot an award of TDIU following that date. The Board acknowledges that the grant of a 100 percent schedular rating does not always render the issue of a TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Special monthly compensation (SMC) may be warranted if the Veteran has a 100 percent disability rating for a single disability and VA finds that a TDIU is warranted based solely on a disability other than the disability that is rated at 100 percent. SMC is not warranted as the Veteran does not have a single disability rated 100 percent disabling. As such, the question for the Board is whether prior to October 31, 2019, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. A review of the record shows that the Veteran has reported being unemployed in 2007, 2008, and 2012. As the Board has now granted a 50 percent disability rating for the Veteran’s anxiety disorder commencing October 1, 2009, it will account for this when discussing his disability ratings and combined ratings prior to October 2019. As of October 1, 2009 his service-connected disabilities included: anxiety disorder, rated at 50 percent; degenerative disc disease of the lumbar spine rated at 10 percent; painful scars from excision of great toenail rated at 10 percent; mild eczema rated at 10 percent; residuals of chip fracture of the right ankle rated at 10 percent; degenerative joint disease of the left ankle rated at 10 percent; chronic sinusitis rated at 10 percent; and chorioretinal scar of the left eye rated at 0 percent. His combined rating is 70 percent. The combined evaluation exceeded 60 percent, the rating for the anxiety disorder now exceeds 40 percent. As of October 17, 2014, the Veteran has been service connected for obstructive sleep apnea rated as 50 percent disabling and tinnitus rated as 10 percent disabling. His combined rating is 90 percent. As of May 22, 2015, the Veteran has been service connected for irritable bowel syndrome rated at 30 percent disabling. The combined rating remained at 90 percent. As of October 5, 2017, the Veteran’s disability rating for degenerative disc disease of the lumbar spine increased from 10 percent to 20 percent. The combined rating remained at 90 percent. Given that there is at least one disability rated at 40 percent or more and the combined evaluation equaled to 70 percent or more, the threshold percentage requirements have been met and to 38 C.F.R. § 4.16(a) is for application. Despite meeting the threshold percentage requirements to establish eligibility for TDIU, as of October 1, 2009, pursuant to 38 C.F.R. § 4.16(a), it must still be determined whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The main question before the Board is whether, the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). Upon review of the record, the Board finds that during the entirety of the appeal that although there were periods of “marginal” employment as that term is used in 38 C.F.R. § 4.16(a), the record does not show that any periods of marginal employment or unemployment was solely the result of his service-connected disabilities. After careful review of the evidence, the Board finds that the most probative and credible evidence fails to show that the Veteran’s service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment any time during the appeal period. According to the February 2016 TDIU application, the Veteran worked full time at the U.S. Census from May 2010 to July 2010, earning approximately $900 a month; at the “MLD” Academy Charter School full time from July 2012 to October 2012, earning approximately $900 a month, and as a home guidance counselor (as required) from January 2010 to December 2015, with the salary listed as “varied.” According to his TDIU application, he completed four years of college and has his M.S. in Counselor Eduction. He also stated that he applied twice, and VA denied him Vocational Rehabilitation Training. August 2012 Social Security Administration (SSA) records list the primary diagnosis as anxiety and the secondary as back disability. SSA did not find the Veteran to be disabled. A March 2012 work history report prepared in connection with the SSA claim illustrates, in relevant portion, the following reported job history: guidance counselor in public education from July 2005 to April 2007, earning $39,000 a year, working 8 hours a day, 40 hours a week; homebound teacher (K-12) in public education from April 2007 to July 2007, earning $16 dollars an hour, working 20 to 40 hours week, 4 to 5 days a week; and administrative clerk at the U.S. Census Bureau, from June 2010 to July 2010, earing $8 dollars an hour, working 8 hours a day, 5 days a week. A disability report- job history report illustrates that the period of employment as a guidance counselor was from 2002 to April 2007. A detailed evaluation was performed in November 2015. The November 2015 VA Counseling Record -Narrative Report (VA Form 28-1902b) illustrates the impact the Veteran’s service-connected disabilities have on his ability to secure employment. The VA psychologist/vocational rehabilitation counselor concluded that although the Veteran has a vocational impairment caused by his service-connected disability, he has overcome the effects of such impairment. He does not have an employment handicap. The November 2015 VA report states that the Veteran’s anxiety disorder limits his ability to engage in employment related duties that require performance of duties under significant stress, pressure, demanding timeframes or under difficult or aggravating workplace conditions. His back, bilateral ankle, and foot disabilities limit his standing, walking, climbing, stooping, and crouching. It also limits repetitive lifting and operation of heavy machinery and equipment. His sinusitis/allergic rhinitis creates a guarded ability to work withing an employment setting that requires exposure to fumes, chemicals, pollens, and related airborne particles. He avoided extreme temperatures because of his mild eczema. He has his Bachelor of Science in Criminology and Sociology. He earned a master’s degree in Education/Counselor Education. He also has a master’s degree in Public Administration. He is certified with the SC State Department of Education in counselor education and school counselor. He has extensive skills in public administration business management, criminology, computer skills, counselor eduction, and oral and written communication skills. His last employment was as an educator/guidance counselor. He worked there, at the Charter School from August 2012 to October 2012, with a listed salary of $2,500. He left the job due to a motor vehicle accident. Prior to that he worked as an automated manger for a funeral home from 2000 to 2001; short and long term substitute teacher with Sumter School District from January 2001 to August 2005; School and Career Guidance Counselor with Sumter County School Career Center from August 2005 to April 2007 (terminated due to disagreements with personnel, staff) and as a finance administrator with the U.S. Census Bureau from June 2010 to August 2010. Salary/wages were not listed for any of these previous employments. The report reflects that the Veteran is unmarried with zero dependents. The November 2015 VA psychologist/vocational rehabilitation counselor also concluded that the Veteran’s service-connected disabilities significantly impair his ability to prepare for and or retain employment. Because of these conditions he is unable to perform physical labor or work in highly stressful office environments. Therefore, he is precluded from working in positions such as industrial, construction, or large office jobs. He is unemployed but given his above stated education and skills, he is qualified for suitable employment and has overcome the effects of the noted impairments with his disability conditions. The Veteran did not meet the criteria for an employment handicap due to having overcome the impairments to employability as he was currently qualified for employment that is consistent with his abilities, aptitudes, and interests. It was noted that he sued the Sumter School District with a minimum settlement. This action probably limited his ability to find further employment in the Sumter School District. In various VA treatment records the Veteran has reported being unemployed as of 2007, as of 2008, and as of 2012. During one visit he reported being unemployed since 2007 stating he was fired from that job and was pursuing legal action. An April 2015 VA primary care secure messaging note reflects written communication by the Veteran. He stated that he has been unemployed and unemployable since 2007 and 2012 after an automobile accident. A November 2008 record provided by SSA shows the Veteran described his job as stressful because he had to travel a lot. September 2010 SSA records described his lack of employment as: retired. The records show he was divorced and had been out of work for the last three years. A September 2011 record provided by SSA shows that the Veteran worked as a guidance counselor. VA treatment records dated both outside the appeal period and during the appeal period show that the Veteran was married for a couple of years, divorcing in the early 1990s, and has a daughter with his ex-wife. It also illustrates that the Veteran was not clear as to whether his daughter was his biologically. At times it was reported that he was in arrears for child support. It did not appear that his daughter ever lived with him and the relationship was often described as estranged or not close. A majority of the records illustrate that the Veteran was divorced, did not remarry, and lived alone. There is an August 2010 record that shows the Veteran lived with his significant other. A July 2011 record shows he left the ER with his spouse. A March 2018 record described him as being divorced, having grown children and being estranged from them. During a November 2019 group therapy session, the Veteran made reference to his wife. A May 2017 VA record and July VA 2020 record indicates that the Veteran is married. The Veteran has been afforded several VA examinations for his service-connected disabilities. He had one VA examination for his sleep apnea. The June 2015 VA concluded that the Veteran’s sleep apnea does not impact his ability to work. An August 2016 VA examination for tinnitus was performed. The functional impact was described in the Veteran’s words. He had difficulty concentrating and sleeping. The Veteran underwent an October 2016 VA examination for the residuals of excision of great toenails. The examiner concluded that this disability does not impact the Veteran’s ability to work. He has had two VA examinations for his irritable bowel syndrome (IBS), one in June 2015 and one in May 2016. Both VA examiners concluded that the Veteran’s IBS did not impact his ability to work. He has had two VA examinations for his eczema, in June 2015 and May 2016. Both VA examiners concluded that the Veteran’s IBS did not impact his ability to work. For his low back, he has had examinations in September 2013, May 2016, and October 2017. Both the September 2013 VA examiner and the May 2016 VA examiner concluded that the Veteran’s low back disability did not impact his ability to work. The October 2017 VA examiner described the Veteran’s functional impact of his back disability. The examiner opined that any prolonged standing or walking may limit functional ability in the occupational setting. With respect to his bilateral ankle disability, he had examinations in January 2013, July 2013, and October 2017. All three VA examiners concluded that the Veteran’s bilateral ankle disability did not impact his ability to work. With respect to his left eye scar disability, he had examinations in July 2013, December 2015, October 2017, and March 2019. All of the VA examiners concluded that the Veteran’s left eye scar disability did not impact his ability to work. The Veteran had two VA examinations for his chronic sinusitis in November 2015 and September 2019. The November 2015 VA examiner concluded that the Veteran’s sinusitis did not impact his ability to work. The September 2019 VA examiner noted the Veteran’s reporting. He is allergic to grass, weeds, pollen, and other allergens in the air; reports sinus issues with weather changes; reports that he has to sleep with his head elevated; reports he is not able to sleep lying flat; reports he has to take sinus medication daily and at night. He has had three VA examinations for his bilateral foot disability, in May 2016, September 2019, and July 2020. As the July 2020 examination occurred after October 31, 2019, the Board will not discuss the findings. The May 2016 VA examiner described the functional impact as being unable to stand or walk excessively. The September 2019 VA examiner included the Veteran’s reports of his functional impact. He reported foot pain with activity that involved prolonged walking or standing; he is not able to run more than 12 minutes at a time; and he is no longer able to dance because of his feet. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran was precluded from obtaining and maintaining gainful employment consistent with his education and occupational experience solely due to his service-connected disabilities, at any time during the appeal period prior to October 31, 2019. Throughout the appeal period, the Veteran inconsistently reported his job history. His reporting includes periods of unemployment, marginal employment, and periods of substantially gainful employment. In an effort for clarity, the Board will discuss the annual salary of the Veteran for each calendar year from 2007 to 2012. As shown above, the record shows that the Veteran has been unemployed since 2012 as such there is no need to discuss the salary after 2012. 2007 In the Veteran’s TDIU application he made no reference regarding his job history during 2007. The Veteran has not submitted earning records, tax returns, or any other official document to illustrate his earnings in 2007. The only record that mentions earnings of the 2007 calendar year is the March 2012 work history report mentioned above. In this report the Veteran stated that in 2007 he worked from January to April, earning $39,000 a year and from April to July, earning $16 dollars an hour, working 20 to 40 hours week. Applying mathematics, it illustrates that his salary in 2007 was anywhere between $13,960 to $14,920. As reflected above, the preponderance of the evidence indicates that the Veteran was unmarried in 2007, lived alone, and was at least legally obligated to provide for his daughter financially. The Board finds that the Veteran’s income for 2007 exceeded the poverty thresholds. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Therefore, for the calendar year 2007 the Veteran’s employment was substantially gainful, and entitlement to a TDIU is not warranted. 2008; 2009 The record is inconsistent as to whether the Veteran was employed at any time in 2008 or 2009. There are several VA treatment records, to include an August 2011 record that lists the Veteran’s reporting as being unemployed since 2007. However, there is a November 2008 record provided by SSA that notes the Veteran’s description of his job as stressful and having to travel often. As a matter of simplicity and as the record has no documentation regarding the Veteran’s earnings in 2008 and in 2009, the Board will assume that if the Veteran was employed during those years any employment was below the poverty threshold, and therefore is minimal. The Board will provide analysis below as to whether a TDIU is warranted at the beginning of the period on appeal. 2010 The Veteran has not submitted earning records, tax returns, or any other official document to illustrate his earnings in 2010. The only records that mention earnings of the 2010 calendar year is the March 2012 work history report mentioned above and the TDIU application. In the TDIU application the Veteran stated that he worked for three months, earning $900 a month. He also stated that he had another employment at that time, but only listed the salary as “varied.” In the March 2012 work history report he indicated that he worked for one month earning $320 a week. Applying mathematics, it illustrates that his salary in 2010 was anywhere between $2,560 to $2,700. As such, the Board finds that the employment in 2010 was marginal, as it falls below the poverty level. The Board will provide analysis below as to whether a TDIU is warranted during this year. 2011 The record is inconsistent as to whether the Veteran was employed at any time in 2011. As mentioned above, there are several VA treatment records, to include an August 2011 record that lists the Veteran’s reporting as being unemployed since 2007. However, there is a September 2011 record provided by SSA that reflects the Veteran currently works as a guidance counselor. Additionally, in the TDIU application the Veteran states that he was employed as a home guidance counselor from January 2010 to December 2015, with the salary listed as “varied.” As a matter of simplicity and as the record has no official documentation regarding the Veteran’s earnings in 2011, the Board will assume that if the Veteran was employed during this year any employment was below the poverty threshold, and therefore is minimal. The Board will provide analysis below as to whether a TDIU is warranted during this year. 2012 The Veteran has not submitted earning records, tax returns, or any other official document to illustrate his earnings in 2012. The only records that mention earnings of the 2012 calendar year are the November 2015 evaluation mentioned above and the TDIU application. In the TDIU application the Veteran stated that he worked for four months, earning $900 a month. He also stated that he had another employment at that time, but only listed the salary as “varied.” In the November 2015 work history report he indicated that he worked for three months earning $2,500 a month. Applying mathematics, it illustrates that his salary in 2012 was anywhere between $3,600 to $7,500. As such, the Board finds that the employment in 2012 was marginal, as it falls below the poverty level. The Board will provide analysis below as to whether a TDIU is warranted during this year. As the evidence indicates that the Veteran was substantially employed in 2007, the question before the Board is whether the Veteran’s service-connected disabilities alone precluded him from obtaining substantially gainful employment from the beginning of the appeal period to October 30, 2019 Specifically, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based upon individual unemployability, due solely to his service-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As reflected above, the Veteran’s service-connected disabilities did meet the threshold percentage requirement to establish eligibility for TDIU as of October 1, 2009. The most probative and credible evidence in this case fails to show that the Veteran’s service-connected disabilities renders him unable to obtain or maintain substantially gainful employment any time during the appeal period. There is no probative evidence of record to indicate that the Veteran’s unemployment, marginal employment, and or his inability to work was due to his service-connected disabilities, nor has any medical professional opined that his service-connected disabilities alone impact his ability to work. All of the VA examination reports of record show that neither his bilateral ankle disability, scars related to the left eye and excision of great toenail bilateral, IBS, eczema, or sleep apnea impacts his ability to work. Functional impact for the low back pain was described as limits on any prolonged standing or walking in the occupational setting. Functional impact of the bilateral foot disability was described as being unable to stand or walk excessively and no longer being able to dance. Functional impact of the chronic sinusitis was described as having allergies, having to sleep in an elevated position and taking medication to treat symptoms. Tinnitus functional impairment was described as difficulty concentrating and sleeping. The 90 percent combined rating in effect prior to October 31, 2019 recognizes the occupational impact of these disabilities, as schedular ratings are assigned to compensate for reduced industrial capacity. Additionally, neither of the examination reports, indicate that these service-connected disabilities prevented substantially gainful employment, at any time between 2008 and October 30, 2019. Also, the November 2015 VA psychologist/vocational rehabilitation counselor concluded that given his stated education and skill he is qualified for suitable employment and has overcome the effects of the noted impairments with his disability conditions. The record does not show, nor does the lay testimony support, that the Veteran’s anxiety disorder has prevented him from securing and maintaining substantially employment. As described above, the Board has assigned a 50 percent disability rating for the Veteran’s anxiety disorder throughout the appeal period. This rating contemplates the significant industrial impairment resulting from his disorder. Although the Board is not bound by the findings of the SSA, the SSA also did not find the Veteran to be disabled as a result of his psychiatric disorder. The Board notes that the Veteran has made statements in relation to what a former VA doctor told him about his psychiatric disorder. In an April 2012 SSA form, he stated that his VA psychiatrist said his PTSD precludes employment. In the October 2014 VA -Form 9 he stated that a doctor opined that his severe PTSD forced him into early retirement and that he is 100 percent totally and permanently disabled as a result of his PTSD. In compliance with the April 2019 remand directives, VA sent the Veteran a letter in May 2019 to secure these private records. To date the Veteran has not responded and there has been no additional statements to indicate these records exist. The Board has made all reasonable attempts to secure these records and any further attempts would be futile. The Veteran, without regard to advancing age and nonservice-connected disabilities, can perform the physical and mental actions required for substantial employment during the applicable appeal period. He is college educated and has two master’s degrees. By the Veteran’s own reporting, it appears that his termination in 2007 was due to an adverse action, such that he pursed legal action. His employment that terminated in 2012 was a result of an automobile accident, and not due to his service-connected disabilities. Additionally, the Veteran has not made any specific allegations contending that any marginal employment or unemployment between 2008 and 2012 was due to his service-connected disabilities. Although the Veteran may sincerely believe that his service-connected disabilities render him unemployable, he is not competent to determine whether he meets the criteria for a TDIU. Regardless, the decision of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”) The Board has the ultimate authority to decide whether the Veteran is employable. The Board finds that the most probative evidence, prior to October 31, 2019, does not show that the Veteran was unable to secure or maintain substantially gainful employment due to his service-connected disabilities alone. Therefore, the Veteran’s claim for TDIU is denied. In closing, the Board does not doubt that the Veteran’s service-connected disabilities have some impact on his employability. However, the 90 percent schedular evaluation in effect prior to October 31, 2019 recognizes significant industrial impairment resulting from his disability. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disability is of such severity so as to preclude his participation in any form of substantially gainful employment. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.