Citation Nr: 21008017 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-08 346 DATE: February 11, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for panic disorder with agoraphobia from April 4, 2011 to July 11, 2018 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective March 3, 2012, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. From April 4, 2011 to July 11, 2018, the Veteran’s panic disorder with agoraphobia causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From April 4, 2011 to July 11, 2018, the Veteran’s panic disorder with agoraphobia does not cause total occupational and social impairment. 3. From July 12, 2018, the Veteran is in receipt of the maximum schedular rating for panic disorder with agoraphobia. 4. From March 3, 2012, the Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for panic disorder with agoraphobia, but no higher, from April 4, 2011 to July 11, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, Diagnostic Code (DC) 9412. 2. From April 4, 2011 to July 11, 2018, the criteria for a rating in excess of 70 percent for panic disorder with agoraphobia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, DC 9412. 3. From July 12, 2018, the criteria for a higher rating for panic disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, DC 9412. 4. From March 3, 2012, the criteria for a TDIU are met. 38 U.S.C. § 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1982 to September 1992. This case is on appeal to the Board of Veterans’ Appeals (Board) from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in October 2012 and March 2015. The Veteran testified before the undersigned at a June 2013 hearing, and a copy of the transcript is of record and has been reviewed. After the United States Court of Appeals for Veterans Claims (“CAVC”) vacated part of a July 2015 Board decision, this case was remanded to the AOJ in March 2016. On remand, the AOJ granted a 100 percent disability rating for the Veteran’s panic disorder, effective July 12, 2018. The Board finds that the AOJ substantially complied with the March 2016 remand directives, making another unnecessary, and the case ready for adjudication. 1. Entitlement to a rating in excess of 10 percent for panic disorder with agoraphobia prior to September 19, 2011; and in excess of 30 percent from September 19, 2011 to January 15, 2015; and in excess of 50 percent from January 16, 2015 to July 11, 2018 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any 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 evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran’s panic disorder is rated under 4.130, Diagnostic Code 9412. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is provided for 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. A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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. 38 C.F.R. § 4.130, DC 9412. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. However, 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, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); 38 C.F.R. § 4.126(a). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran’s symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the DSM-5 (Fifth Edition). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). In this case, the AOJ received the Veteran’s claim in September 2011; therefore, the regulations pertaining to the DSM-IV are for application. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms, (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. See American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). Id. GAF scores between 21 and 30 are assigned when behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). Id. The Veteran filed for an increased rating for his panic disorder on September 19, 2011. Thus, the relevant appeal period for consideration includes the one-year period prior to September 19, 2011. See 38 C.F.R. § 3.400 (o). As explained above, the questions before the Board include whether a higher rating is warranted VA outpatient treatment records reflect that, in April 2011, the Veteran was voluntarily admitted for inpatient psychiatric treatment after experiencing depression with suicidal ideation. The Veteran endorsed worsening symptoms of anxiety over the previous two months, with thoughts of hopelessness, worthlessness, and being a burden to family. He endorsed depressed mood, anhedonia, low energy, “terrible” sleep, and poor motivation. Following his hospitalization, the Veteran was seen for ongoing medication management and individual therapy. In June 2011, he continued to experience depression and difficulty with motivation. The Veteran was not very active and did not socialize. In November 2011, the Veteran was afforded a VA examination. He described an increase in anxiety symptoms beginning in 2008. Specifically, he reported difficulty driving to work because of anxiety and panic attacks. He stated he would cope with the symptoms by pulling over and calling a friend to calm him down, but she died in April 2008, after which he experienced difficulty controlling his anxiety while driving. He reported no other significant social relationships. Additionally, he reported anxiety in the shower and a lack of motivation to get up in the mornings. Because of these symptoms, the Veteran was frequently late to work and was fired in 2008. At the time of the VA examination, the Veteran was employed, and he reported a recent outburst at his present place of employment. He still experienced daily anxiety while driving, in the dark, in the shower, and in situations where he felt trapped. He reported one or two panic attacks per month. The Veteran also reported symptoms of depression, including sad mood, loss of pleasure in activities he used to enjoy, restless sleep, fatigue, and feelings of worthlessness and hopelessness. The examiner noted that the Veteran had been hospitalized in April 2011 for “worsening depression and suicidal ideation.” However, the Veteran denied suicidal ideation at the time of the VA examination. The Veteran reported a good relationship with the older of two daughters, as well as father and sister. He was employed since 2010, and stated he was friendly with his co-workers and customers but denied socializing with anyone outside of work. He had no close friends. He enjoyed watching movies and taking his sister’s dogs for a walk. The examiner observed that the Veteran was disheveled and poorly groomed but was alert and oriented in all spheres. The Veteran had anxious mood with congruent affect. There was no evidence of impairment in thought processes or communication, and no evidence of impulsivity, hallucinations, delusions, or obsessive or compulsive tendencies. The Veteran denied problems with memory, attention, or concentration. He was assigned a GAF score of 65. In March 2012, the Veteran left his job due to anxiety. He reported that working conditions aggravated his symptoms, including social isolation, insomnia, and poor sleep. At an outpatient appointment in March 2012, the Veteran reported becoming anxious at night, at sporting events, concerts, in the shower, in public situations, when stopped at a light while driving, feeling boxed between cars, in bad weather, and when the doorbell or phone rings. In June 2012, the Veteran applied for benefits from the Social Security Administration (SSA). The Veteran reported intrusive and racing thoughts, anxiety, anger, alienation, poor concentration, panic attacks, occasional suicidal ideation, exaggerated startle response, depression, helplessness, and sleep disturbances. In September 2012, the Veteran underwent an evaluation for SSA by Dr. E.J. In addition to the symptoms reported above, the Veteran avoided crowds, and had physical responses to panic, such as rapid heartbeat, trembling, and trouble swallowing. The Veteran also reported claustrophobia, variable mood and appetite, and a reversed sleep cycle. The impression was that the Veteran had severe anxiety and depression. A treatment record dated in December 2012 indicates that the Veteran experienced nightly panic attacks. He reported staying up all night worrying and sleeping during the day. The Veteran also experienced some depression. In January 2013, the Veteran attended group therapy. He did not participate, but he was attentive. His GAF score was determined to be 55. In February 2013, the Veteran underwent another VA examination. The Veteran reported that he had quit his job because of safety concerns and his home was foreclosed. Since then, he had been residing in transitional housing for veterans. As a result, the Veteran reported, his anxiety had increased and had been worsening since approximately 2011. He had mild-to-moderate anxiety daily, with weekly panic attacks. The Veteran continued to have chronic sleep impairment and no social supports. The Veteran was assigned a GAF score of 60, and the examiner noted that his symptoms had increased since the previous VA examination, and were moderate with moderate psychosocial problems. In a written statement dated in March 2013, the Veteran reported that his panic disorder “crippled [his] daily functions” and that he had “fears such as sleeping in the dark, undressing to get into the bed or bathing, being in places with loud noises, etc.” The Veteran also reported racing thoughts and nightmares. From March 2013 to April 2013, the Veteran as hospitalized for treatment of his gambling addiction and received electro-convulsion treatment (ECT). Treatment records reflect that the Veteran reported improvements in sleep and mood following treatment. A discharge summary reported his GAF as 35 at admission and 55 at discharge. In April 2013, the Veteran reported ongoing difficulty sleeping, nightmares, low motivation, nightmares, lack of socializing, racing thoughts, and anxiety. The Veteran denied suicidal ideation, and manic and psychotic symptoms. The Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by his VA treatment provider in May 2013. The Veteran’s GAF score was 60. His panic disorder caused symptoms such as pounding heart, fear of losing control, nausea, and overall fear of situations. He had anxiety, weekly panic attacks, and chronic sleep impairment. At his June 2013 hearing, the Veteran reported he had daily panic attacks, difficulty sleeping, was homeless, had no friends, and could not work. The Veteran’s representative also argued that the Veteran had difficulty establishing relationships. The Veteran underwent psychological testing in September 2013. The profile was consistent with a high level of anxiety, indecisiveness, and rumination over anticipated problems. Depression was likely, along with pessimism, fatigue, somatic symptoms, and somewhat slowed speech and decision-making. The Veteran was assigned a GAF score of 55. In October 2013, the Veteran reported anxiety, sleep disturbances, low energy and mood, feelings of worthlessness or helplessness, and difficulty concentrating. A GAF score of 59 was assigned. In November and December 2013, the Veteran had anxiety and broken sleep. He denied suicidal ideation. In February 2014, the Veteran reported episodic depression and four panic attacks the previous month but denied suicidal ideation. He presented with a reactive and mildly constricted affect. Beginning in March 2014, the Veteran started receiving intensive outpatient therapy at Western Psychiatric Institute and Clinic. He was assigned a GAF score of 45 at his intake evaluation. The Veteran’s symptoms included depression, difficulty sleeping, anxiety, and frequent and uncontrollable worry and restlessness. He also experienced hypervigilance, intrusive thoughts, avoidance, detachment, anhedonia, low concentration, anger, fear, and was easily startled. He denied suicidal ideation, mania, psychosis, obsessions and compulsions. Throughout appointments in 2014, the Veteran presented as alert and oriented, with normal speech and logical thought processes. There are no notes of hallucinations or delusions. He continued to be anxious with sleeplessness and racing thoughts, but denied helplessness, hopelessness, and suicidal ideation. In November 2014, the Veteran’s anxiety was noted to be in the “severe” range. The Veteran had another VA examination in January 2015. He continued to experience daily anxiety and worry, poor sleep, and low mood, with panic attacks five times per week. The Veteran also had disturbances of motivation, difficulty establishing relationships, and difficulty adapting to stressful circumstances. He denied suicidal ideation. He reported nightmares about trying and being unable to escape danger. There was no evidence of psychosis or obsessive-compulsive disorder. Since the last VA examination, the Veteran had resided in transitional housing, and was in a VA domiciliary. He reported working a seasonal job, which caused anxiety. He reported that he had no relationship with his younger daughter, a limited relationship with his father, but was very close with his older daughter, who was his only social contact and whom he described as his “best friend.” The Veteran enjoyed taking walks and talking with his daughter on the phone. The Veteran presented with adequate grooming, and grossly intact memory, concentration, and attention. There was no evidence of hallucinations, delusions, paranoia, impaired memory, or inability to understand complex commands. The Veteran’s symptoms were deemed to be in the moderate-to-severe range. In his March 2015 Notice of Disagreement, the Veteran reported near-continuous panic, neglect of hygiene, and an inability to maintain relationships. In May 2015, the Veteran’s treatment provider noted that he “tends to ruminate and catastrophize, which fuels his anxiety.” The Veteran was worried about not being near a medical facility or being alone “if he has a medical need.” In September 2015, the Veteran reported that his anxiety was “pretty high” and he continued to have difficulty sleeping. At an appointment in January 2016, the Veteran was noted to have depressive symptoms in the “severe range.” The Veteran underwent another VA examination in May 2016. He reported that he had occasional contact with his older daughter and had a good relationship with his father but had limited or no contact with other family members. He denied having friends, and his hobbies were watching television, listening to music, and reading the Bible. The Veteran managed his activities of daily living, though he had difficulty showering and driving due to claustrophobia. The Veteran’s symptoms included anxiety, depressed mood, feelings of helplessness, sleep disturbance, difficulty relaxing, irritability, social isolation, nightmares, disturbances of motivation and mood, difficulty establishing and maintaining relationships, and panic attacks more than once a week. The Veteran presented with adequate grooming, generally intact memory, logical thought processes, adequate judgment and insight, and no inappropriate behaviors. There was no evidence of hallucinations, delusions, or suicidal ideation. The Veteran’s symptoms were determined to be of the same severity as the prior VA examination. In June 2016, the Veteran reported that his anxiety had increased because his father was in hospice. In July 2016, the Veteran reported sleeping two or three hours per night due to fear of the dark and worry. In December 2016, the Veteran reported difficulty falling and staying asleep and panic attacks seven times per week. In October 2017, the Veteran reported feeling “not good” with symptoms of anxiety, depression, and insomnia. He also endorsed avoidance, feeling lost, feeling like he had no quality of life, no friends or hobbies, isolation, engaging in no pleasurable activities, and no work. The Veteran denied suicidal ideation. In March 2018, the Veteran reported isolating, sleep problems, nightmares, hypervigilance, and panic. There was no evidence of suicidal ideation or gross memory impairment. The Veteran’s anxiety and depression were determined to be “severe.” In April 2018, the Veteran was noted to be “always anxious and panicky,” and he had nightmares and was hypervigilant. He did not like being around people, was irritable, and felt he could not leave the house most of the time. The Veteran’s depression and anxiety were assessed to be in the severe range. The Veteran had a VA examination in July 2018. The examiner opined that his symptoms resulted in total occupational and social impairment. The Veteran reported fear of the dark, fear of crowds, rarely leaving home, fear of enclosed spaces, anxiety that something is going to happen, worry that he is never in control, and always being on edge. The Veteran’s symptoms also included depressed mood, suspiciousness, panic attacks more than once per week, near-continuous panic or depression, chronic sleep impairment, flattened affect, disturbances of motivation and mood, inability to establish and maintain effective relationships, obsessional rituals, and difficulty adapting to stressful circumstances. The examiner noted that the Veteran was quite depressed and anxious, and he was easily startled. After a de novo review of the evidence, the Board concludes that the evidence supports a 70 percent rating from April 4, 2011 to July 11, 2018, but no higher. In the year prior to the filing of the claim, the outpatient records show that the Veteran experienced suicidal ideation and was hospitalized in April 2011. While he did not report suicidal ideation after he was released from the hospital, the Veteran had symptoms such as low energy, fragmented sleep, depression, insomnia, anxiety, worry, racing thoughts, nightmares, fear, irritability, disturbances of motivation and mood, feelings of helplessness, restlessness, indecision, alienation, hypervigilance, panic attacks, neglect of grooming, and avoidance. The Veteran reported that he had no friends, and only maintained a relationship with his father and one daughter, which represents a deficiency in his relationships. The Veteran also experienced excessive worry, severe anxiety, fear, and helplessness, which are deficiencies in thinking. Since March 2012, the Veteran was not employed, and reported that anxiety affected his abilities to drive and work with others, which represents a deficiency in work. Finally, the Veteran experienced severe depression, variable mood, flattened and reactive affect, and irritability, which are deficiencies in mood. Therefore, the Veteran experienced deficiencies in most areas of life, warranting a 70 percent rating from the date of hospitalization. The Board notes that the reported symptoms persisted, even though the severity varied, but they were never less than “moderate,” as demonstrated by a GAF score ranging from 35 to 60, meaning that a 70 percent rating is warranted for deficiencies in most areas of the Veteran’s life to July 11, 2018. From July 12, 2018, the Veteran is already in receipt of a 100 percent rating, which is the maximum schedular available. The Board also finds that a 100 percent rating is not warranted prior to July 12, 2018, as the Veteran did not have total social and occupational impairment prior to that date. The Veteran maintained an ability to identify and report problems to his psychiatrist and cooperate with providers, which indicates he did not have a total social impairment. Although he reported limited interactions, he also reported that he had a good relationship with his older daughter, and his father before he passed away. The Veteran was always coherent, and oriented to time and place, he exhibited no hallucinations or delusions, and did not have major memory loss, such as forgetting his own name. There is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, or disorientation to time or place. While the Board acknowledges that the Veteran’s symptoms were documented to have worsened, such that the Veteran left his house less and less, the evidence does not support a finding that the Veteran’s panic disorder symptoms totally impaired the Veteran’s functioning. For instance, the Veteran attended some group therapy appointments and participated. He also attended church, and engaged in enjoyable activities, such as taking walks and watching movies. There is also no indication that the Veteran was in persistent danger of hurting himself, and the evidence shows that the Veteran maintained his thought processes. As the Veteran’s panic disorder symptoms, including irritability, hyperarousal, anxiety, racing thoughts, depressed mood, sleep impairment, disturbances of motivation, difficulty maintaining effective relationships, and suicidal ideation are contemplated by a 70 percent rating, a 100 percent rating is not warranted prior to July 12, 2018. 2. Entitlement to a TDIU Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16 (a). 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). See also Faust v. West, 13 Vet. App. 342 (2000). Substantially gainful employment contains economic and noneconomic components. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). A rating decision code sheet shows that the Veteran is service-connected for: panic disorder with agoraphobia, and a 70 percent rating was granted herein from April 4, 2011; lumbosacral strain with degenerative disc disease and intervertebral disc syndrome, rated at 40 percent from September 10, 2010; left leg radiculopathy, associated with lumbosacral strain, rated at 10 percent from September 10, 2010; and residuals of trauma to the right testicle and chronic folliculitis, both rated as noncompensable (0 percent). Thus, the Veteran has a combined rating of 70 percent, with at least one disability rated at least 40 percent disabling from April 4, 2011, meaning he meets the threshold schedular eligibility requirements for TDIU. The question, then, is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his panic disorder, back disability, radiculopathy, chronic folliculitis, and trauma residuals. As explained in greater detail below, the Board concludes that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation from March 3, 2012. Turning to the evidence, the record indicates that the Veteran has a high school diploma with one year of college, and that he has occupational experience as the manager of a retail store. The Veteran was last gainfully employed in March 2012. In March 2012, the Veteran submitted a statement in support of his claim. He indicated that he had panic attacks at work because he did not feel safe. Additionally, he reported that his service-connected back and leg disabilities prevent him from standing for long periods of time. The Veteran’s SSA records show that, in September 2012, a Statement of Claimant’s Ability to Perform Work-Related Physical Activities was completed. The Veteran had limitations lifting, carrying, standing, walking, sitting, bending, keeling, stooping, and crouching. Specifically, his standing and walking were limited to one hour per day, and he required frequent position change when sitting. The SSA considered the Veteran’s service-connected back disability and radiculopathy in this assessment. A Mental Residual Functional Capacity Assessment was also completed in September 2012. The Veteran was not significantly limited in his abilities to: carry out very short and simple instructions, carry out detailed instruction, sustain an ordinary routine without special supervision, make simple work-related decisions, ask simple questions or request assistance, be aware of normal hazards and take appropriate precautions, and set realistic goals or make plans independently of others. However, the Veteran was moderately limited in his abilities to: maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; work in coordination with or in proximity to others without distraction; complete a normal workday and workweek without interruptions from psychological symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept and respond appropriately to criticism from supervisors; get along with coworkers without distracting them or exhibiting behavioral extremes; and respond appropriately to changes in the work setting. The SSA ultimately determined that the Veteran was disabled. The Veteran also sought unemployment benefits for having left his job in March 2012 due to safety concerns. In July 2012, the Unemployment Compensation Board of Review determined that the safety issues at his place of employment aggravated his anxiety and panic attacks. Prior to voluntarily quitting his job, the Veteran offered various suggestions to supervisors in order to alleviate stress and help manage his symptoms. The Compensation Board of Review determined that his suggestions were dismissed or deemed not necessary by his employer, and that the Veteran’s employment jeopardized his mental health. In February 2013, a VA examiner concluded that the Veteran was fully employable. The examiner explained that the Veteran would be able to keep a schedule, tolerate stress, and interpersonal interactions required to maintain employment without experiencing an exacerbation of psychiatric symptoms. In September 2013, a VA examiner opined that the Veteran’s back disability would not limit his ability to engage in light physical employment or sedentary employment. In September 2013, the Veteran was evaluated for Vocational Rehabilitation and Employment (VR&E) services. It was noted that the Veteran’s IVDS caused limitations in lifting, prolonged standing or sitting, lifting, pulling, balancing, stooping, crouching, crawling, kneeling, and climbing. His panic disorder caused limitations in tight spaces or interacting with people. The Veteran had nervousness and depression and would have limitations from insomnia and sleeping two or three hours a night. It was determined that the Veteran’s limitations put him at risk for reduced work performance and adversely affected his abilities to obtain and maintain employment in a field consistent with his abilities and aptitudes, including jobs in warehousing, retail, or store management. Therefore, the Veteran had an impairment to employability. An outpatient note from November 2013 reflects that the Veteran worked stocking shelves part-time as seasonal employment. The Veteran underwent a VA examination in February 2015. The examiner opined that the Veteran was not unemployable. He had stressors, such as homelessness and unemployment, that when resolved, would improve his mood and anxiety, allowing him to tolerate the stress and interpersonal interactional required to maintain employment with accommodations. Since the Veteran reported panic at night, he would require a day shift. The Veteran had another VA examination in May 2016. The examiner noted the Veteran’s application for a TDIU and noted that the Veteran did not experience problems at past work because of his panic disorder or mental health symptoms. The Veteran had a successful work history and worked as a manager, and never lost a job due to performance. The Veteran reported that he could not work because mood symptoms and lack of energy, but the examiner indicated he never had difficulty with those things before, and there was no increase in symptoms significant enough to suggest he would not be able to tolerate stress, structure, work tasks, or social interactions required for work. The Veteran was afforded a VA examination for his back disability in July 2016. The examiner opined that his back would not impact his ability to work. In October 2020, a vocational expert, K. M., reviewed the Veteran’s records, interviewed him, and wrote a report on his behalf. She opined that the Veteran’s records were consistent with an individual who was more likely than not unable to secure and follow substantially gainful employment, including sedentary unskilled work, as a result of service-connected disabilities. Ms. M. explained that the Veteran would have difficulty with most, if not all, of the following requirements for employment: sustaining focus and attention for at least two hours; remaining free from distraction or interruption; not requiring redirection to remain on task; not taking unscheduled breaks or leaving a workstation, except at designated times; attending work on a regular schedule, free from absences or tardiness; and consistently producing a minimal amount of work while on the job. After review of the record and interview, Ms. M. concluded that the Veteran’s symptoms of panic attacks, isolation, nightmares, fatigue, sleep impairment and insomnia, restlessness, irritability, and hypervigilance, would interfere with his abilities to interact appropriately with others, remain focused, consistently and reliably be productive, and tolerate stress. The Veteran’s back disability and radiculopathy would preclude him from sitting or standing for prolonged periods without alternating back and forth, and he would need many unscheduled breaks, which would interfere with sustained productivity. After reviewing the evidence, the Board concludes that a TDIU is warranted from the date of the Veteran’s last employment, or March 3, 2012. The evidence shows that the Veteran has not been substantially gainfully employed since 2012, and the Board finds that his seasonal work was not substantially gainful. Moreover, his service-connected back disability and panic disorder impact his ability to work. The Veteran’s psychiatric disability causes social isolation, anger and irritability, difficulty adapting to work-like setting, and difficulty maintaining effective relationships. Moreover, the Veteran’s IVDS limits him from doing physically demanding jobs and sitting and standing for prolonged periods. There is no evidence in the claims file that the Veteran has qualifications or experience that would allow him to work in a job that does not require prolonged sitting or standing. While the VA examinations of record suggest that the Veteran’s service-connected disabilities do not impact his abilities to work or do not render him unemployable, they are afforded little weight. The SSA records, VR&E records, and Ms. K. M.’s opinion are afforded more weight in the Board’s analysis because they assess the Veteran’s ability to perform various individual tasks required for employment, such as maintaining focus for an entire workday. With the positive opinions having more weight, the Board concludes that granting the Veteran’s TDIU claim from March 3, 2012 is warranted. Sarah Richmond Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate 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.