Citation Nr: A21020127 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190927-34418 DATE: December 16, 2021 ORDER Service connection for a right knee disorder is denied. Since July 31, 2012, an initial rating of 70 percent, but no higher, for panic disorder with agoraphobia is granted, subject to the laws and regulations governing payment of monetary benefits. Since July 31, 2012, a total disability rating based on individual unemployability (TDIU) due to service-connected panic disorder with agoraphobia is granted, subject to the laws and regulations governing payment of monetary benefits. An effective date of July 31, 2012, but no earlier, for eligibility for Chapter 35 Dependents' Educational Assistance (DEA) benefits is granted. REMANDED Entitlement to service connection for a pancreatic disorder, claimed as due to exposure to environmental hazards in Gulf War, and/or as secondary to service-connected panic disorder with agoraphobia, is remanded. Entitlement to service connection for a right-hand disorder, to include as due to exposure to environmental hazards in Gulf War, is remanded. FINDINGS OF FACT 1. A right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of separation from active duty. 2. Since July 31, 2012, the Veteran's panic disorder with agoraphobia is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 3. Since July 31, 2012, the Veteran's service-connected panic disorder with agoraphobia rendered him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background. 4. Eligibility requirements for Chapter 35 benefits, arose on July 31, 2012. CONCLUSIONS OF LAW 1. The criteria for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Since July 31, 2012, the criteria for an initial 70 percent rating, but no higher, for panic disorder with agoraphobia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9412. 3. Since July 31, 2012, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 4. The criteria for an effective date of July 31, 2012, but no earlier, for basic eligibility to DEA benefits have been met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 20.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from January 1989 to April 1989, and on active duty from January 1991 to March 1991. By way of background, a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office denied service connection for posttraumatic stress disorder (PTSD), a right-hand disorder, and pancreatic cyst. In a June 2015 rating decision, service connection for PTSD was granted with a 50 percent rating, effective July 31, 2012, and the claims for service connection for a right-hand disorder and pancreatic cyst were again denied. Entitlement to a TDIU was also denied. In a January 2016 rating decision, such claims continued to be denied as well as the claim for service connection for a right knee disorder. In August 2016, the Veteran entered a notice of disagreement (NOD); however, in August 2018, he withdrew such legacy appeal and opted into the Rapid Appeals Modernization Program (RAMP), which was a test program for the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). In such election, he requested a Higher-Level Review of the January 2016 rating decision. Subsequently, a rating decision issued in August 2019 considered the evidence of record as of the date VA received the RAMP election form, and presumed that new and relevant evidence had been received so as to warrant readjudication of the claims for service connection for a right-hand disorder and pancreatic cyst, which is a favorable finding binding on the Board, and denied it on the merits. 38 C.F.R. § 3.104(c). Such rating decision also awarded a 100 percent rating, effective March 12, 2019, for the Veteran's psychiatric disability and recharacterized it as panic disorder with agoraphobia. Basic eligibility for Chapter 35 DEA benefits was also awarded, effective March 12, 2019, and the claims for entitlement to a TDIU and service connection for a right knee disorder, pancreatic cyst, and a right-hand disorder were denied. In September 2019, the Veteran timely appealed the August 2019 rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Thus, the Board's review is limited to the evidence of record at the time of issuance of the rating decision on August 19, 2019. With regard to the Veteran's claim for a TDIU, the U.S. Court of Appeals for Veterans Claims (Court) has held that the award of a 100 percent disability rating does not necessarily render a claim for a TDIU moot. Specifically, the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). Here, however, the Veteran's panic disorder with agoraphobia is the sole disability for which service connection has been granted. Therefore, such provisions are inapplicable in the instant case and the claim for a TDIU since March 12, 2019, the date a 100 percent schedular rating has been assigned, is rendered moot. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). Finally, the Board notes that in his September 2019 NOD, the Veteran also appealed the claim for service connection for a liver disorder. However, the August 2019 rating decision deferred such issue, and it was later adjudicated in an October 2019 rating decision. In November 2019, the Veteran requested a Higher-Level Review of the October 2019 rating decision and a January 2020 rating decision continued to deny the claim. However, since the Veteran did not appeal the January 2020 rating decision, the claim for service connection for a liver disorder is not before the Board and it does not have jurisdiction to adjudicate such claim. 1. Entitlement to service connection for a right knee disorder. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National of any State. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim"); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that preponderance of the evidence is against the Veteran's claim for service connection for a right knee disorder. In this regard, his service treatment records (STRs) are negative for any complaints, treatment, or diagnoses referable to a right knee disorder. Moreover, while the AOJ favorably found that the Veteran's post-service VA treatment records showed that he is diagnosed with right knee arthritis, such records do not show, or suggest, that such disorder is related to his military service. Such likewise fail to demonstrate that his arthritis manifested to a compensable degree within a year of his separation, or he experienced a continuity of symptomatology since such time. Furthermore, the Veteran has not provided any description as to the basis of his claim that his right knee disorder is related to his military service. In this regard, the Board notes that an examination and/or opinion have not been obtained in regard to the instant claim. However, VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Consequently, as there is no indication that the Veteran's right knee disorder, may be related to any instance of his military service, a VA examination and/or opinion is not necessary to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, the Board finds that the Veteran's right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. Therefore, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a right knee disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to an initial rating in excess of 50 percent prior to March 12, 2019, for panic disorder with agoraphobia. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's service-connected psychiatric disability is evaluated pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. In this regard, a 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). The Veteran has been assigned an initial rating of 50 percent prior to March 12, 2019, and a 100 percent rating thereafter for his psychiatric disability. As the Veteran has been assigned the maximum schedular rating available for panic disorder with agoraphobia since March 12, 2019, the focus of this decision will be the propriety of the assigned evaluation for his panic disorder with agoraphobia from July 31, 2012, the date of service connection, to March 11, 2019. After a review of the record, the Board finds that, for the entire appeal period prior to March 12, 2019, the Veteran's panic disorder with agoraphobia is manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas. Consequently, an initial 70 percent rating for such disability is warranted. However, as such disability does not result in total occupational and social impairment, an initial rating in excess of 70 percent is not warranted. In this regard, the Veteran was afforded a VA examination in May 2015. At such time, the examiner noted that the Veteran met the DSM-5 criteria for PTSD and had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he was remarried for about 5 years and had one son from his first wife that he was close to him. He also stated that his marriage was going well. He had not worked steadily in the last decade. His symptoms included depressed mood, anxiety, panic attacks more than once a week, 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. The examiner further noted that the Veteran relied on his wife to do most things and that he did not work and was socially isolated. Moreover, subsequent treatment records reveal that in August 2015, the Veteran reported that he had no mood changes, anxiety, or depression, and that his level of satisfaction with life was good. In June 2016, his PTSD and depression screens were both negative In March 2018, the Veteran underwent another VA examination and such examiner noted diagnoses of agoraphobia and panic disorder. In this regard, the examiner opined that that the Veteran was misdiagnosed with PTSD as he had clear symptoms of both panic disorder and agoraphobia identified in the report. He determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that he avoided all crowds and did not leave the house alone. He also stated that he has made no new friends and had no contact with the people he knew before and during his military service. The Veteran was unemployed and last worked full-time in 2004 as a project manager in a company that built cell towers. The examiner noted that the Veteran's spouse took his problems in stride and denied that his symptoms had affected their marital relationship. His symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbances of motion and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and an inability to establish and maintain effective relationships. Additionally, the examiner noted that the Veteran has been in his second marriage for the last 15 years and he got along well with his wife. His wife and mother were also his support team. Later that same month, a private evaluation was received from J.B., Ph.D. He reviewed the Veteran's entire claims file and conducted two interviews with him via videoconference. He determined that the Veteran was suffering from severe and chronic PTSD, peristent depressive disorder (dysthymia), agoraphobia, and alcohol use disorder (in sustained remission), and that he had been totally impaired socially and occupationally, and therefore, had been unable to obtain and maintain substantially gainful employment since he last worked in 2000. With regard to employment, he noted that post-service, the Veteran worked as a contractor with Sprint and moved up to a project manager even though he continued to be angry, anxious, and depressed. He quit his job in 2000, and has not worked regularly since as he became fearful of travel and crowds and could not stand in an enclosed place. Nonetheless, in 2007, he started a business to provide clean-up services with his wife and in late 2008, he started to work "odd jobs" again. J.B. noted that during a mental health visit in July 2011, the Veteran was informed that if he continued to drink, he was going to die, and he quit on the spot and has not had a drink since. Upon clinical evaluation, J.B. noted that the Veteran presented as cooperative; alert and oriented in all 4 spheres; mood was dysphoric with a constricted affect; was extremely anxious with constant motor activity, fidgeting, and pressured speech; thinking was logical with no evidence of a thought disorder; and there was no evidence of hallucinations or delusions. J.B. also noted that he used the cognitive distortion scale that resulted in a clinical picture of the Veteran being extremely disordered as he viewed the work as a dangerous place and assumed that objectively benign circumstances contain the risk of negative outcomes. J.B. further noted that he disagreed the March 2018 VA examiner in that the Veteran did meet the DSM-5 criteria for a diagnosis of PTSD. Nonetheless, such disability is also rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Thus, J.B. concluded that the Veteran has been totally impaired socially and occupationally and has therefore been unable to obtain and maintain substantially gainful employment since he last worked in 2000. In this regard, he noted that the Veteran only had one friend since grade school that he still talks to often over the phone and that he trusts no one other than his one friend, wife, and mom. Thereafter, in May 2018, the Veteran was afforded another VA examination and such examiner noted a diagnosis of PTSD. He found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that his civilian jobs had been construction and project manager and that he last worked 10 years ago. He also reported that he had a serious problem with alcohol for several years and that he "burned out his pancreas" and had had not drank alcohol in several years. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, 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, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran underwent another VA examination on March 12, 2019, and such examiner noted that the Veteran had a diagnosis of agoraphobia and panic disorder as he did not believe the Veteran met the full criteria for PTSD. He determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported he had no friends he interacted with and was completed socially isolated and spent most of his day in his bedroom. He also stated that he rarely saw his son but would talk to him on the phone occasionally and he was very dependent on his wife. The Veteran acknowledged he felt somewhat hopeless about his life and has had passive thoughts of suicide but denied any current thoughts, plans, or intentions. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, 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 work like setting, inability to establish and maintain effective relationships, and suicidal ideation. Based on the foregoing, the Board finds that, for the appeal period prior to March 12, 2019, the Veteran is entitled to an initial rating of 70 percent, but no higher, for his service-connected panic disorder with agoraphobia as such disability is shown to result in, at most, occupational and social impairment with deficiencies in most areas as a result of his psychiatric symptomatology, including depression; desire to isolate himself; panic attacks; hypervigilance; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, difficulty concentrating; memory impairment; sleep impairment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work like setting; and difficulty in establishing and maintaining effective work and social relationships. Additionally, the March 2018 and May 2018 VA examiners found that the Veteran's psychiatric disability resulted in in occupational and social impairment in most areas, which is consistent with a 70 percent rating under the General Rating Formula. However, the Board further finds that prior to March 12, 2019, such disability does not result in more severe manifestations that more nearly approximate total occupational and social impairment. Specifically, there is no evidence that the Veteran's panic disorder with agoraphobia results in symptomatology of 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. In this regard, the Board notes that while J.B. found that the Veteran's psychiatric disability resulted in him being totally impaired socially and occupationally, his clinical evaluation suggested otherwise. Specifically, he noted that the Veteran was alert and oriented in all 4 spheres and his thinking was logical with no evidence of a thought disorder. He also noted that the Veteran had one friend who he still talked to on the phone often and that he was close with his wife and mother. He also described the Veteran's memory impairment as being able to read a book and not be able to remember it in 2 days. However, this does not equate to memory loss for names of close relatives, own occupation, or own name. Moreover, for the appeal period prior to March 12, 2019, the Veteran reported a good relationship with his mom, wife, and son. During the Veteran's March 2018 VA examination, his wife also stated that she took his problems in stride and denied that his symptoms had affected their marital relationship. Thus, while the Veteran may have total occupational impairment, he has not had total social impairment throughout the appeal period. Therefore, based on the foregoing, the Board finds that the Veteran's panic disorder with agoraphobia is manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas without more severe manifestations that more nearly approximate total occupational and social impairment. Therefore, an initial rating of 70 percent, but no higher, is warranted for the appeal period prior to March 12, 2019. Notably, since March 12, 2019, the Veteran has been in receipt of a 100 percent rating for his psychiatric disability, which is the maximum rating available under DC 9412 and is commensurate with total social and occupational impairment. A higher rating is not possible under this DC. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected psychiatric disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Thus, assigning staged ratings for such disability is not warranted. Other than his claim of entitlement to a TDIU, the Veteran nor his representative, have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has applied the benefit of the doubt doctrine, which has resulted in the award of a 70 percent rating for the Veteran's panic disorder with agoraphobia for the appeal period prior to March 12, 2019. However, as the preponderance of the evidence is against an initial rating in excess of 70 percent for such disability, that doctrine is not applicable in such regard and his initial rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a TDIU. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay and profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before." In other words, "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Pursuant to this decision, the Veteran is service-connected for panic disorder with agoraphobia rated at 70 percent for the appeal period prior to March 12, 2019, which stems from the effective date of the award of service connection for such psychiatric disability, July 31, 2012. Thus, the Veteran meets the threshold schedular criteria for consideration of a TDIU for the appeal period prior to March 12, 2019. However, as noted previously, his claim for a TDIU is rendered moot as of such date. Thus, the remaining inquiry is whether the Veteran's service-connected disability rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history at any time prior to March 12, 2019. Based on a review of the evidence, the Board finds that entitlement to a TDIU is warranted for the entire appeal period prior to March 12, 2019. In this regard, in his July 2014 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran noted that his PTSD, pancreatic cyst, hypertension, condition of the hands, head injuries, ulcers, heart condition, and tooth condition prevented him from securing or following any substantially gainful occupation. The Veteran submitted another VA Form 21-8940 in June 2015 and noted that his PTSD and chronic pancreatitis prevented him from working and that he was last self-employed in construction from 2004 to 2007. In September 2015, an additional VA Form 21-8940 was received, in which the Veteran noted that he was unable to work due to his liver disorder and pancreatic cyst. He also noted that he could not do the task at hand as he was constantly sick, had 3 seizures, high blood pressure, and could not cope with work environment. He further noted that he could not control situations with a supervisory position and that his hands could not grab tools. Additionally, in an October 2015 statement, the Veteran stated that he had not been able to obtain work for some time due to his hands, knee, PTSD, and his chronic pancreatitis, and the medication he was on. Nonetheless, while the Veteran contended that other disorders besides his service-connected psychiatric disability prevented him from working, as discussed previously, J.B. opined that the Veteran had been totally impaired, socially and occupationally due to his psychiatric disability, and had therefore been unable to obtain and maintain substantially gainful employment since he last worked in 2000. In this regard, J.B. noted that the Veteran worked as a contractor with Sprint and moved up to a project manager, while he continued to be angry, anxious, and depressed. He quit his job in 2000, and had not worked regularly since, as he became fearful of travel and crowds and could not stand in an enclosed place. In 2007, he started a business to provide clean-up services with his wife and in late 2008, he started to work "odd jobs" again. J.B. noted that the Veteran's depression and anxiety increased dramatically, and he began to stay home and refused to go out. J.B. also noted that the Veteran had poor to very poor abilities in various specific work functions such as following work rules, relating to co-workers, dealing with the public, using judgment, interacting with supervisors, dealing with work stresses, and understanding, remembering, and carrying out complex and detailed job instructions. Thus, J.B. concluded that the Veteran was totally occupationally impaired due to his psychiatric disability. Additionally, the May 2015, March 2018, and May 2018 VA examiners found that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting, and the Veteran reported that he remained unemployed during such examinations, having last worked as a project manager. Therefore, based on a review of the foregoing, the Board resolves all doubt in favor of the Veteran and finds that, for the entire appeal period prior to March 12, 2019, stemming from his July 31, 2012 claim, his service-connected panic disorder with agoraphobia, to specifically include the resulting difficulty he has in regard being fearful of travel and crowds and not being able to stand in an enclosed place, renders him unable to secure or follow a substantially gainful occupation consistent with his education and prior work history as project manager. Thus, the Board finds that a TDIU is warranted prior to March 12, 2019. 4. Entitlement to an effective date prior March 12, 2019, for eligibility for Chapter 35 DEA benefits. The Veteran is seeking an earlier effective date for the eligibility to DEA benefits under Chapter 35. In this regard, Chapter 35 benefits, Survivors' and DEA, is a program of education or special restorative training that may be authorized for an eligible person, such as a child or surviving spouse, if the applicable criteria are met. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of Survivors' and DEA benefits exists if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or, (5) if a serviceperson is on active duty as a member of the Armed forces and is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power. Service-connected disability or death must have been the result of active military, naval, or air service on or after April 21, 1898. 38 C.F.R. § 3.807. The Veteran also seeks an earlier effective date for DEA benefits pursuant to 35, Title 38 of the United States Code. The Veteran was awarded eligibility to DEA in an August 2019 decision, effective from March 12, 2019. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. As explained above, the Board has found that the appropriate effective date of the Veteran's TDIU is July 31, 2012. Since the effective date for DEA benefits in this case is directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, the Board finds that an effective date of July 31, 2012, for Chapter 35 benefits is also warranted. REASONS FOR REMAND 5. Entitlement to service connection for a pancreatic disorder, claimed as due to exposure to environmental hazards in Gulf War, and/or as secondary to service-connected panic disorder with agoraphobia. 6. Entitlement to service connection for a right-hand disorder, to include as due to exposure to environmental hazards in Gulf War. The Board finds that a remand is warranted to correct a duty to assist error that occurred prior to the issuance of the August 2019 rating decision on appeal. In this regard, the Veteran contends he has a pancreatic disorder and/or a right-hand disorder that is related to exposure to environmental hazards in Gulf War. Specifically, in his January 2012 claim, he noted that he was on assignment in Iraq in 1991, and during his May 2015 VA PTSD examination, he reported that he was deployed to Saudi Arabia for 3 or 4 months as his stressor. The Veteran's DD 214 from his period of service from January 31, 1991 to March 14, 1991, also noted that he was ordered to active duty in support of Operation Desert Storm and that he had foreign service for one month and one day. Nonetheless, a November 2012 response to a request for information found that there was no evidence in the Veteran's record to substantiate Southwest Asia Service. However, a review of the record does not indicate that the AOJ conducted any further development to corroborate the Veteran's contention of having served in Southwest Asia. Thus, as the AOJ favorably found that the Veteran's treatment records confirmed a diagnosis of chronic pancreatitis with a cyst and dupuytren contracture of right hand, the Board finds that a remand is necessary in order for the AOJ to conduct the proper development with regards to the Veteran's unit records to corroborate whether he served in Southwest Asia and was exposed to environmental hazards in Gulf War. Additionally, the Veteran contends that his pancreatic disorder is secondary to his service-connected psychiatric disability. In this regard, in the March 2018 opinion, J.B. opined that the Veteran's chronic pancreatis resulted from his long-standing alcohol use disorder that was proximally caused by his attempts to self-medicate his PTSD as it is well documented that heavy alcohol use can result in chronic pancreatis. However, the AOJ did not obtain an opinion to determine if such disorder was caused or aggravated by his alcohol use disorder and, if so, whether such was, in turn, caused or aggravated by his service-connected psychiatric disability. Thus, the Board finds that a remand is necessary to address such concerns. The matters are REMANDED for the following action: 1. Verify through any appropriate source, to include the National Personnel Records Center and Joint Services Records Research Center, whether the Veteran served in Southwest Asia during his period of service from January 1991 to March 1991, and whether he was exposed to environmental hazards. All attempts to verify such service should be documented in the file. 2. Then, forward the record, to include a copy of this Remand, to an appropriate VA clinician in order to obtain an opinion addressing the etiology of the Veteran's pancreatic disorder and right-hand disorder. Following a full review of the record, the examiner should address the following inquires: (A) The examiner should opine as to whether there is clear and unmistakable evidence that the Veteran's pancreatic disorder, currently diagnosed as chronic pancreatitis, pre-existed any period of active service. In this regard, the examiner should consider the Veteran's report of having pancreatitis several times in his lifetime and that his first bout was when he was 12 years old as documented in a September 2011 VA treatment record. (i) If so, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progression of the disease. (ii) If not, the examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's chronic pancreatitis had its onset in, or is otherwise related to, his active service, to include, if verified, exposure to environmental hazards. (B) The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's chronic pancreatitis is caused or aggravated by an alcohol use disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. (C) If the above requested medical opinion results in a determination that the Veteran's chronic pancreatitis is caused or aggravated by his alcohol abuse disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that his alcohol use disorder resulted from his attempt to self-medicate his service-connected panic disorder with agoraphobia symptoms. (D) The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right-hand disorder, currently diagnosed as dupuytren contracture of right hand, had its onset in or otherwise related to his military service, to include, if verified, his exposure to environmental hazards. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a pancreatic disorder and/or a right-hand disorder, or the lack of medical records demonstrating a continuity of care after service. (Continued on the next page) A rationale for any opinion offered should be provided. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.