Citation Nr: 21006299 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-02 375 DATE: February 3, 2021 ORDER A higher initial disability rating of 70 percent, but no higher, for service connected anxiety disorder, from September 10, 2014, is granted. From September 10, 2014, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From September 10, 2014, the severity, frequency, and duration of the symptoms of the service connected anxiety disorder more nearly approximated occupational and social impairment with deficiencies in most areas. 2. From September 10, 2014, the effective date of service connection for all of the Veteran’s service-connected disabilities, the Veteran was unable to maintain substantially gainful employment as a result of service connected disabilities. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, from September 10, 2014, the criteria for a higher initial disability rating of 70 percent for the service connected anxiety disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9413. 2. Resolving reasonable doubt in the Veteran’s favor, from September 10, 2014, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1976 to February 1977. This matter came before the Board of Veterans’ Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The Veteran testified at a September 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decisions grants a TDIU for the entire rating period on appeal, no further discussion of VA’s duties to notify and assist is necessary as to that issue. Further, as the anxiety disorder rating issue arises from the Veteran’s disagreement with the initial rating assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with multiple VA mental health examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that at the September 2020 virtual Board hearing, the Veteran offered testimony indicating that the mental health symptoms may have worsened since the last VA mental health examination; however, in an October 2020 post-hearing brief, the Veteran’s representative argued that the symptoms testified to by the Veteran were in line with that contemplated by a 70 percent disability rating. The representative did not argue, and the Veteran’s testimony does not support, that a total 100 percent disability rating is warranted for the service-connected anxiety disorder. As the instant decision grants a higher initial disability rating of 70 percent for the entire initial rating period on appeal, along with entitlement to a TDIU, the Board finds remand for a new VA mental health examination to be unnecessary. 1. Higher Initial Disability Rating for Anxiety Disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for the service connected anxiety disorder. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans’ Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Under Diagnostic Code 9413, a 30 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501 (2012); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated 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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). At the outset the Board notes that there has been some question as to whether the Veteran has any non-service-connected mental health disabilities, such as paranoid schizophrenia, in addition to the service-connected anxiety disorder. Per the report from the April 2017 VA mental health examination, the Veteran was solely diagnosed with an anxiety disorder. Further, at the time of the February 2015 VA mental health examination, the VA examiner specifically found that the Veteran’s symptoms of paranoia and suspiciousness were due to the service-connected anxiety disorder. For these reasons, the Board has attributed all the mental health symptoms to the service-connected anxiety disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). At the September 2020 virtual Board hearing, the Veteran credibly testified to not sharing all mental health symptoms with medical professionals when offered the opportunity to do so, to include at the previous VA mental health examinations, due to feelings of discomfort. This testimony is supported by the report from a July 2012 Social Security Administration (SSA) mental health examination. Per the examination report, the Veteran expressed a reluctance to discuss the mental health symptoms. As such, the SSA examiner found the Veteran to have poor judgment, as this uncooperative nature would not assist the Veteran in obtaining SSA benefits. For these reasons, the Board finds the Veteran’s September 2020 testimony concerning the severity of the mental health symptoms, with the aid of representation, to be more probative than the reports from the March 2015 and April 2017 VA mental health examinations. Having reviewed the evidence of record, lay and medical, the Board finds that, for the entire initial rating period on appeal, the severity, frequency, and duration of the symptoms of the service-connected anxiety disorder more nearly approximated occupational and social impairment with deficiencies in most areas. As discussed above, the Veteran received a SSA mental health examination in July 2012. Per the examination repot, the Veteran had last worked as a truck driver in 2008, and was then “unemployed, fearful of returning to work, extremely depressed, and anxious.” It was noted that the Veteran remained at home most of the time caring for a pet fish (like or similar to an inability to establish and maintain effective relationships). Per the SSA report, the Veteran had fathered two children. It was noted that the Veteran had a poor relationship with both children, along with the rest of his family (like or similar to an inability to establish and maintain effective relationships). While Veteran did live with his sister, it was reported that the Veteran had a poor relationship with her as well. The Veteran was isolated, had no friends, and was depressed, anhedonic, irritable, and uncooperative. Upon examination the Veteran was dressed neatly and cleanly, and was able to maintain the appropriate activities of daily living. The Veteran was initially pleasant and cooperative, although very depressed (showing a severity greater than that contemplated by the 30 percent rating criteria); however, the SSA examiner noted that the Veteran’s irritability increased as the examination continued, until the Veteran eventually walked out of the examination in the middle of testing (like or similar to difficulty in adapting to stressful circumstances). The Veteran’s abstract reasoning and judgment were noted to be poor. The SSA examiner found the uncooperative behavior during the examination to show the Veteran’s inability to perform in his best interests or to conform to the demands of an occupational setting (like or similar to difficulty in adapting to stressful circumstances, to include work or a worklike setting). Per the SSA examiner, the Veteran was showing clear signs of depression, as the Veteran was idle most of the day, reclusive, and demonstrated no interest in life (like or similar to difficulty in adapting to stressful circumstances and/or an inability to establish and maintain effective relationships). Further, the VA examiner noted that the Veteran was irritable and unable to behave in a manner that would improve his situation (like or similar to difficulty in adapting to stressful circumstances). At the conclusion of the examination the SSA examiner found that the Veteran had learning difficulties, impaired processing skills, impaired concentration, and moderate to severe depression. Further, it was noted that the Veteran was extremely uncooperative, even in non-competitive/supportive environments. The SSA examiner found that the Veteran’s emotional, cognitive, and physical sequela precluded returning to competitive employment. Further, the SSA examiner opined that the mental health symptoms alone resulted in major occupational impairment. A VA mental health examination was performed in February 2015. Per the examination report, the Veteran’s second marriage involved a significant amount of arguing, with the police called on one occasion due to the Veteran assaulting the spouse. It was noted that the Veteran had two adult children, but that the Veteran had no relationship with them. The Veteran conveyed having minimal interpersonal relationships and preferred staying to himself (like or similar to an inability to establish and maintain effective relationships). Upon examination the VA examiner noted symptoms of anxiety and suspiciousness. VA received a lay statement from the Veteran’s sister in January 2017. Per the lay statement, the sister explained that the Veteran lived with her, but that they had minimal contact. The Veteran was noted to be constantly nervous, anxious, and paranoid. Per the sister, the Veteran had isolated himself, had no friends, and avoided the family on the holidays (like or similar to an inability to establish and maintain effective relationships). Significantly, the sister explained that the Veteran is always angry and aggressive, and that it is impossible to have a normal conversation due to the anger being triggered at random. On one occasion the Veteran even pulled a shotgun out on the sister. Further, the sister did not believe that the Veteran could hold a job, as it was likely the Veteran would end up getting in fights with authority figures. Such evidence supports that the Veteran’s anger problems have manifested as impaired impulse control. While the Board has considered whether such evidence supports that the Veteran is a persistent danger of hurting others, the shotgun incident only happed on one occasion, the sister did not report that the Veteran ever physically assaulted her, and there is no indication that the sister feels that living with the Veteran is a danger to her; therefore, the Board finds the severity, frequency, and duration of the Veteran’s anger problems to be more in line with impaired impulse control, with unprovoked irritability with periods of violence. A lay statement from the Veteran’s mother was also received in January 2017. Per the lay statement, the Veteran has symptoms of anxiety, anger, lack of coping abilities, and difficulty concentrating. Per the mother, the Veteran had been involved in multiple physical fights throughout his life. Again, considering all the evidence of record, the Board finds that the severity, frequency, and duration of these fights more nearly approximate impaired impulse control, with unprovoked irritability with periods of violence, rather than the Veteran being a persistent danger to others. Further, the mother indicated that the Veteran does not have any friends and prefers to be alone (like or similar to an inability to establish and maintain effective relationships). Finally, the mother stated that the Veteran is unable to work, as the Veteran becomes anxious, paranoid, and angry in a work setting (like or similar to difficulty in adapting to stressful circumstances, to include work or a worklike setting). The Veteran received a new VA mental health examination in April 2017. Per the examination report, while the Veteran did not have any close friends, he did have two casual friends that he would see once every few weeks. It was noted that the Veteran had been arrested on three occasions in the past, including for criminal domestic violence on one occasion. Upon examination the Veteran displayed symptoms of depressed mood, anxiety, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a worklike setting. The Veteran’s mood was noted to be anxious and agitated. At the conclusion of the examination the VA examiner opined that the Veteran’s anxiety resulted in moderate to considerable impairment. Finally, the Veteran testified at a September 2020 virtual Board hearing. At that time, the Veteran credibly testified to having anxiety and panic attacks when entering social settings. The Veteran also testified to having increased anger problems with around other people. Such anger had resulted in severe verbal altercations in the past, and on occasion resulted in fist fights; however, the Veteran testified that the other side would throw the first punch (due to the Veteran’s verbal provocation), and that the Veteran was merely defending himself in these physical altercations. Further, while the Veteran did testify to having thoughts about “maybe” hurting others, and having hurt other during fights (in which he was self defending), the Veteran denied any intention to assault others. As such, the Board finds that the severity of the irritability/anger problems is more in line with impaired impulse control, with unprovoked irritability with periods of violence, rather than a finding that the Veteran is a danger to himself or others. The Veteran denied having any friends, and testified to not getting along with his mother and sister (like or similar to an inability to establish and maintain effective relationships). The Veteran also testified to having memory and concentration problems, and denied having any hobbies or other interests. Further, the Veteran expressed remorse concerning the shotgun incident with his sister, discussed above, and testified that his actions were due to a panic/anxiety attack. Such evidence supports that the Veteran’s anxiety symptoms are of such severity, frequency, or duration to result in deficiencies in judgment, thinking, or mood. The Veteran also credibly testified that, when working, the anxiety symptoms would escalate until it resulted in verbal confrontations, to include yelling and screaming, with authority figures at work. Such arguments would inevitably lead to the Veteran being fired. The Board finds such evidence supports that the anxiety symptoms manifested as difficulty in adapting to stressful circumstances, to include work or a worklike setting. The Board has reviewed all the VA and SSA medical evidence of record. Such evidence does not show additional symptoms or occupational and social impairment beyond those discussed above. After a review of all the evidence, lay and medical, the Board finds that, from September 10, 2014, the severity, frequency, and duration of the symptoms of the service connected anxiety disorder more nearly approximated occupational and social impairment with deficiencies in most areas, as required for a disability rating of 70 percent under Diagnostic Code 9413. As discussed above, the Board has found that the Veteran’s anxiety and anger symptoms have been of such severity, frequency, and duration to be like or similar to symptoms of impaired impulse control with unproved irritability and periods of violence, difficulty adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. Such symptoms are specifically contemplated by the 70 percent disability rating criteria. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence shows that an initial disability rating of 70 percent is warranted for the service connected anxiety disorder from September 10, 2014. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9413. The Board acknowledges that the anxiety disorder symptoms have resulted in significant social and occupational impairment, hence, is assigning a 70 percent disability rating in the instant decision that recognizes serious symptoms and serious occupational and social impairment that affects various aspects of the Veteran’s life; however, the evidence of record does not reflect that during the relevant period on appeal the symptoms were so severe, or frequent, or of such duration to cause total occupational and social impairment to warrant a 100 percent total schedular disability rating. 38 C.F.R. §§ 4.3, 4.7. For the reasons discussed above, the Board has found that, while the Veteran’s anger issues have resulted in physical altercations, the severity, frequency, and duration of the anger problems do not render the Veteran a persistent danger to himself or others. Further, per the report from the April 2017 VA mental health examination, the Veteran conveyed having two casual friends that he would see on occasion. Further, while the Veteran’s relationship with his sister is strained, they are at least close enough that the sister was willing to write a lay statement on his behalf, and they are also able to live together as roommates. Such evidence reflects that the Veteran’s social impairment is not total. Review of all the other evidence of record, including the VA and SSA medical records, supports a finding that the severity, frequency, and duration of the symptoms of the service connected anxiety disorder did not result in total occupational and social impairment during the initial rating period on appeal. Per the above, in the October 2020 post-hearing brief, the Veteran’s representative explicitly argued that the Veteran’s symptoms were in line with those contemplated by a 70 percent disability rating. As such, the Board finds that a total 100 percent disability rating is not warranted at any point during the initial rating period on appeal. Id. 2. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this case, due to the Board’s grant of a higher initial disability rating for the service connected anxiety, the combined disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met for the entire rating period on appeal, from September 10, 2014. From September 10, 2014, the Veteran had a combined disability rating of 70 percent or more, with at least one disability rated at 40 percent or more, which included service connection for an anxiety disorder, rated as 70 percent disabling, tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as noncompensable (0 percent). See 38 C.F.R. § 4.16(a). Per a January 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Base on Unemployability, the Veteran last worked in 2008 as a truck driver. Prior to working as a truck driver, the Veteran also worked as a deliveryman and taxi driver. The Veteran’s SSA records support that, prior to unemployment, the Veteran primarily worked in the transportation field. As discussed above, the Veteran received a SSA mental health examination in July 2012. At the conclusion of the examination, the SSA examiner found that the Veteran’s emotional, cognitive, and physical sequela precluded returning to competitive employment. As to the mental health symptoms alone, it was noted that the Veteran’s depression, concentration, organization, attention, and processing difficulties resulted in extremely low levels of academic and clerical skills. Further, the Veteran’s mental health symptoms severely limited the ability to function in all areas and to relate to supervisors and co-workers. Finally, the SSA examiner opined that the mental health symptoms alone would result in major occupational impairment. Per the report from the April 2017 VA mental health examination, while the service connected anxiety disorder resulted in moderate to considerable impairment, it did not result in an inability to secure or maintain substantially gainful employment; however, the VA examiner did indicate that the Veteran would likely need a job in which he worked with only a few other people, that involved few interruptions, and which had few competing job demands. At the September 2020 virtual Board hearing, the Veteran testified, and the evidence of record supports, that the Veteran’s highest level of education is tenth grade. Further, the Veteran testified to have no experience working with computers or in an office setting. The Veteran also credibly testified that, when working, the anxiety symptoms would escalate until it resulted in verbal confrontations, to include yelling and screaming, with authority figures at work. Such arguments would inevitably lead to the Veteran being fired. The Veteran credibly testified that such arguments would again occur if the Veteran were to try to obtain employment at this time. Having reviewed all the evidence of record, lay and medical, the Board finds that, from September 10, 2014, the effective date of service connection for all of the Veteran’s service-connected disabilities, the Veteran has been unable to obtain or maintain substantially gainful employment as a result of service connected disabilities. Per the Veteran’s testimony and the SSA records, the Veteran has a tenth-grade eduction, and no experience working with computers or in an office environment. While a VA examiner in April 2017 opined that the Veteran could work in an environment involving few other people, few interruptions, and few competing job demands, the evidence of record supports that the Veteran’s mental health symptoms are of such severity to prevent the Veteran for being able to train for such a position. Further, even if the Veteran were able to obtain employment, the evidence supports that the Veteran anxiety and anger symptoms would inevitability lead to one or more (possibly physical) fights with superiors, which would eventually result in the Veteran’s termination from employment. For the above reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that service-connected disabilities, specifically symptoms of the service-connected anxiety disorder, prevent the Veteran from maintaining substantially gainful employment. For these reasons, the Board finds that a TDIU is warranted from September 10, 2014, the effective date of service connection for the Veteran’s service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, Counsel 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.