Citation Nr: 21010868 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-21 749 DATE: February 25, 2021 ORDER Entitlement to restoration of a 40 percent disability rating for cervical spine degenerative disc disease, status post fusion, effective June 1, 2018 is granted. Entitlement to an increased disability rating in excess of 40 percent for cervical spine degenerative disc disease, status post fusion, is denied. Entitlement to an increased disability rating of 50 percent, but no greater, for a service-connected headache disability is granted. Entitlement to an increased disability rating of 50 percent, but no greater, for a service-connected acquired psychiatric disability is granted. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. A December 2013 rating decision increased the Veteran’s cervical spine disability rating to 40 percent effective April 25, 2013. 2. An April 2015 decision proposed to reduce the Veteran’s cervical spine disability evaluation from 40 percent to 30 percent based on clear and unmistakable error. A February 2018 rating decision effectuated the reduction from 40 percent to 30 percent effective June 1, 2018. 3. A November 2020 rating decision reduced the Veteran’s cervical spine disability to 20 percent rating effective June 1, 2018. 4. There was not clear and unmistakable error in the December 2013 rating decision granting a 40 percent rating for the Veteran’s cervical spine disability. 5. Proper notice was not provided the Veteran prior to the November 2020 reduction of the Veteran’s cervical spine disability evaluation to 20 percent. 6. The Veteran’s cervical spine disability does not cause ankylosis of the spine nor require at least six weeks of bed rest prescribed by a physician during a 12-month period. 7. The Veteran’s headache condition manifests with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 8. The Veteran’s service-connected acquired psychiatric disability manifests with panic attacks multiple times per week, daily anxiety and depression, difficulty establishing and maintaining relationships, and suicidal thoughts, causing occupational and social impairment with reduced reliability and productivity. 9. The Veteran did not return a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and the evidence does not support that he is prevented from obtaining or maintaining gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for reduction of the rating for the Veteran’s cervical spine disability from 40 to 30 percent, effective June 1, 2018, were not met, and restoration of the prior rating is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(a), 3.344, 4.3, 4.71a, Diagnostic Code 5243. 2. The criteria for reduction of the rating for the Veteran’s cervical spine disability to 20 percent, effective June 1, 2018, were not met, and restoration of the prior rating is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.71a, Diagnostic Code 5243. 3. The criteria for entitlement to an increased rating in excess of 40 percent for the Veteran’s service-connected cervical spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 4. The criteria for entitlement to a rating of 50 percent, but no greater, for the Veteran’s service-connected headache disability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8100. 5. The criteria for entitlement to a rating of 50 percent, but no greater, for the Veteran’s service-connected acquired psychiatric disability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.118, Diagnostic Code 9413. 6. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to May 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO)/Agency of Original Jurisdiction (AOJ) on December 2013, March 2014, and February 2018. The Veteran testified before the undersigned at a hearing held in November 2018; a transcript of that hearing is of record. In April 2019, the Board remanded the Veteran’s claim for further development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to restoration of a 40 percent disability rating for cervical spine degenerative disc disease, status post fusion, effective June 1, 2018 The Veteran contends he is entitled to restoration of a 40 percent rating for his service-connected cervical spine disability effective June 1, 2018. A December 2013 rating decision increased the Veteran’s cervical spine disability rating to 40 percent effective April 25, 2013. In an April 2015 decision, the RO proposed to reduce the disability evaluation from 40 percent to 30 percent based on clear and unmistakable error. A February 2018 rating decision effectuated the reduction of Veteran’s cervical spine disability rating from 40 percent to 30 percent effective June 1, 2018. The decision indicates that the Veteran’s new combined rating for all of his service-connected disabilities was thus reduced from 80 percent to 70 percent. A November 2020 rating decision assigned a 20 percent rating for the Veteran’s cervical spine disability effective June 1, 2018, citing clear and unmistakable error and stating that sustained improvement had been shown at the time of the reduction. Decisions are final when the underlying claim is finally adjudicated as provided in 38 C.F.R. § 3.160(d). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a)(1). Clear and unmistakable error (CUE) is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. 38 C.F.R. § 3.105 (a)(1)(i); see also Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell v. Principi, 3 Vet. App. 310, 313 (1992)). The Code of Federal Regulations provides guidance as to what constitutes CUE. Specifically, it states that changed diagnosis, evaluation of evidence, and change in interpretation are examples of situations that are not CUE. 38 C.F.R. § 20.1405(d). Review for CUE in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record and the law that existed when that decision was made. The duty to assist in 38 C.F.R. § 3.159 does not apply to requests for revision based on clear and unmistakable error. 38 C.F.R. § 3.105(a)(1)(iii). The December 2013 rating decision granting a 40 percent rating indicates that the 40 percent rating is warranted based on the Veteran having incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The April 2015 decision proposing reduction from 40 percent to 30 percent states that the grant of the 40 percent rating was based on clear and unmistakable error as the increase was based on unsubstantiated self-reported periods of incapacitation which is in contravention of the unambiguous evidentiary requirements in the rating schedule. The proposed reduction further stated that the VA decision maker should have verified reported periods of incapacitation. Under 38 C.F.R. § 4.71a, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Note 1 states that for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. A review of the record at the time of the December 2013 decision shows that in December 2013 the Veteran was afforded a VA examination. The examination report indicates that over the past 12 months the Veteran experienced incapacitating episodes having a total duration of at least six weeks due to IVDS. As there is evidence supporting that the Veteran met the criteria for a 40 percent rating, the Board finds that the determination to grant the rating was based on weighing or evaluating the evidence of record. There is no requirement within the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or other applicable regulations that requires a specific type of evidence to support a finding of incapacitating episodes. Therefore, the Board finds that the December 2013 rating decision grating a 40 percent rating does not constitute clear and unmistakable error. The Board finds that the reduction was improper, and restoration of the 40 percent rating is warranted. The Board further finds that the November 2020 reduction of the Veteran’s rating to 20 percent was improper. The reduction decision cited clear and unmistakable error but then discussed that sustained improvement had been shown. A failure to find sustained improvement cannot have been clear and unmistakable error as there was not a prior decision that adjudicated whether sustained improvement had been shown. The February 2018 rating decision based its reduction on clear and unmistakable error in the December 2013 rating decision granting an increase to 40 percent. Further, the procedural safeguards of 38 C.F.R. § 3.105(e) for reducing a rating based on sustained improvement, which would have been necessary since the Board finds that the February 2018 reduction was improper, were not met. Pursuant to 38 C.F.R. § 3.105(e), the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. Then, a final rating action will be taken to effectuate the reduction. The effective date of the reduction will be the last day of the month in which the 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e). Therefore, the Board finds that the November 2020 reduction was improper, and restoration of the 40 percent rating is warranted. 2. Entitlement to an increased disability rating in excess of 40 percent for cervical spine degenerative disc disease, status post fusion The Veteran contends that he is entitled to a higher rating for his cervical spine disability because he has had at least six weeks of incapacitating episodes during a 12-month period. The Veteran’s cervical spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s cervical spine disability based on incapacitating episodes due to IVDS. A May 2015 letter by the Veteran’s private physician discusses the Veteran’s pain and tightness in the cervical area and headaches, noting that the Veteran requires bed rest for up to three hours a day as a result of his symptoms. At his November 2018 Board hearing, the Veteran testified that pain from his neck and headaches require bed rest twice a day. The report of the Veteran’s December 2013 VA examination indicates that over the past 12 months the Veteran experienced incapacitating episodes having a total duration of at least six weeks due to IVDS. The VA examiner who conducted the May 2016 VA examination of the Veteran indicated that the Veteran does not have IVDS, thus the examiner did not indicate any bed rest required due to IVDS. The Board has reviewed the Veteran’s medical records but finds that the records do not support that the Veteran has been prescribed bed rest due to his cervical spine condition for at least six weeks during a 12-month period. The Board acknowledges that the Veteran has testified, and his private physician has indicated, that he lays down for up to three hours a day. However, the evidence indicates that those periods are not periods of prescribed bed rest due to the Veteran’s cervical spine disability. Rather, much of the symptomatology discussed as the cause of the Veteran needing to lay down is related to his headaches. A preponderance of the evidence is against finding that the Veteran’s cervical spine disability, apart from his headache disability, required at least six weeks of bed rest prescribed by a physician and treatment by a physician during a 12-month period. The Board finds that a preponderance of the evidence is against finding that a rating in excess of 40 percent is warranted under the criteria for rating IVDS based on incapacitating episodes. A preponderance of the evidence is also against a rating in excess of 40 percent for the Veteran’s cervical spine disability under the General Rating Criteria. The Veteran was found not to have ankylosis of his spine on examination in December 2013 and May 2016. In December 2013, his range of motion was tested as forward flexion to 20 degrees with pain beginning at 10 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees with pain beginning at 5 degrees, and right and left lateral rotation to 20 degrees with pain beginning at 10 degrees. On repetitive use testing, he had forward flexion to 20 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. In May 2016, his range of motion was tested as forward flexion, extension, and right and left lateral flexion to 20 degrees and right and left lateral rotation to 40 degrees with no additional loss of function or range of motion on repetitive use testing, with repeated use over time, or during a flare-up. Thus, range of motion testing does not support that the Veteran’s spine is fixed. The Board acknowledges the Veteran’s lay reports of symptoms and that he has functional loss, including due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation does not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. Therefore, a rating in excess of 40 percent is not warranted under the General Rating Criteria. The Board further acknowledges that the Veteran has argued that he is entitled to a separate rating under the General Rating Criteria in addition to a rating under the criteria for rating IVDS based on incapacitating episodes. However, separate ratings are both sets of criteria is not permitted. The evaluation of the same disability under various diagnoses violates VA’s anti-pyramiding regulation. See 38 C.F.R. § 4.14. Regarding neurological impairment, the Veteran has already been granted service connection for right and left upper extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Further, the Board notes that the Veteran’s current 40 percent rating was granted under the rating criteria for incapacitating episodes due to IVDS. Evaluating a veteran under IVDS along with the assignment of separate ratings for radiculopathy would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for his cervical spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased disability rating in excess of 30 percent for a service-connected headache disability The Veteran contends that he is entitled to rating in excess of 30 percent for his service-connected headache disability. In his substantive appeal, the Veteran indicated that he is seeking a 50 percent rating. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine. Under DC 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). At his December 2013 mental health VA examination, the Veteran reported that he has daily headaches the intensity of which, in addition to his spine pain, contributes to putting him asleep. At his January 2014 VA examination, the Veteran reported daily headaches that vary in intensity and are worsened with lifting and exertional activities. He reported nausea and sensitivity to light and sound associated with his headaches. The examiner indicated that the Veteran does not have characteristic prostrating attacks of migraine headache pain. The examiner further opined that the Veteran does have prostrating attacks of non-migraine headache pain but does not have very frequent prostrating and prolonged attacks of non-migraine headache pain. The examiner indicated that the Veteran’s headache condition causes decreased concentration. A June 2014 VA treatment records reflects that the Veteran reported daily, constant headache pain at a severity of between 6 to 9 out of 10 that is worsened with activity and improves with heat, loosening muscles, and capsaicin cream. In a May 2015, the Veteran’s private physician authored a letter that the Veteran has pain and tightness in the cervical area and headache, resulting in severe sensitivity to light and sound, which causes lightheadedness and nausea, daily since 2012. The doctor stated that the acute symptoms of the Veteran’s intervertebral disc syndrome cause him to require bedrest for up to three hours a day. A November 2018 private treatment record reflects that the Veteran reported a constant headache that gets intense with nausea, vomiting, and photo and phonophobia. The treatment record indicates that a level of intensity that causes vomiting occurs twice a month. At his November 2018 Board hearing, the Veteran testified that he has a headache every day that will put him to sleep twice a day. He stated that he uses black out curtains in his house and blue light filters on the light from his computer screen. He reported that once a week he has to reschedule a class because he can’t make it due to a headache. On VA examination in December 2019, the Veteran reported daily headaches manifest with constant and pulsating or throbbing pain, nausea, vomiting, sensitivity to light and sound, and changes in vision that cause him to lay down for about an hour. The examiner opined that the Veteran has characteristic prostrating attacks of headache pain more frequently than once a month but does not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The Veteran reported that when he gets a headache he has to lay down for about an hour. Based on the forgoing, the Board finds that giving the Veteran the benefit of the doubt, and considering the nature and frequency of his headaches, his condition more closely associates the criteria for a 50 percent rating, namely, frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating available under Diagnostic Code 8100 and the rating sought by the Veteran; therefore, the Board finds that a rating in excess of 50 percent is not warranted. 4. Entitlement to an increased disability rating in excess of 30 percent for a service-connected acquired psychiatric disability The Veteran contends that he is entitled to a rating in excess of 30 percent for depressive disorder, generalized anxiety disorder, and panic disorder due to chronic pain. 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 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. Id. The Board finds that giving the Veteran the benefit of the doubt, his service-connected psychiatric condition results in impairment that most closely approximates occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent rating. The Veteran has undergone two VA mental health examinations during the period on appeal, in December 2013 and December 2019. The Board notes that the December 2013 VA examiner opined that the Veteran’s condition causes occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent rating, while the December 2019 VA examiner opined that the Veteran’s condition causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, which is the criteria for a 10 percent rating. The Board has carefully reviewed the entire record, to include the Veteran’s VA and private treatment records, his 2013 and 2019 VA examinations, and the Veteran’s lay statements, including his November 2019 Board testimony. Throughout the period on appeal, the Veteran has reported having panic attacks multiple times per week. He has also reported daily anxiety and depression. He has reported a positive relationship with his children and during part of the period on appeal had a girlfriend of multiple years; however, he has otherwise indicated his relationships to be superficial. He has reported completing an advanced degree and working during the period on appeal but has noted that he is able to do so more easily even with his psychiatric symptoms as his work is done online rather than in-person. The Board notes that the Veteran has expressed suicidal ideation, which is noted in the 70 percent rating and which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating or even a 70 percent rating. Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. This case is distinguishable from Bankhead because, in this case, the Veteran has not had multiple instances of suicidal ideation (passive or otherwise) throughout the appeal period. Rather, he had a limited instance of ideation and on the occasions that the Veteran has reported suicidal thoughts, he has described them as passive, denying intent or plan involving self-harm. Furthermore, throughout the period on appeal the Veteran has been noted to have logical and goal-directed thought content and process, normal speech, and no evidence of perceptual disturbance. His insight and judgement have been noted to be fair to good. Although he testified at his Board hearing that he sometimes neglects his personal hygiene since he stays at home all the time, his personal appearance and hygiene have regularly been noted to be appropriate in medical records throughout the period on appeal. He has further reported anxiety and depression; however, despite those symptoms he has been able to complete an advanced degree and teach online classes, which he has reported being good at. He has also been the caregiver for his minor children during summers throughout the period on appeal, and reports having a good relationship with his children. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Further, the Board finds that the overall level of impairment caused by the Veteran’s symptoms most closely approximates the level associated with a 50 percent rating. Based on the forgoing, the Board finds that a 50 percent rating, but no greater, is warranted for the Veteran’s service-connected psychiatric condition. 5. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran’s ratings for his service-connected acquired psychiatric disability, headaches, cervical spine disability, right and left upper extremity radiculopathy, scar, pes planus with plantar fasciitis, and hypertension result the Veteran meeting the schedular rating criteria for TDIU. The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The term substantially gainful employment refers to, at the minimum, the ability to earn a living wage, and is not engaged in substantially gainful employment if annual income below the poverty threshold for one person). See Bowling v. Principi, 15 Vet. App. 1, 7 (2001). In Faust v. West, 13 Vet. App. 342, 356 (2000), the Court held actual employability is shown as a matter of law by substantially gainful employment. This means employment 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. Id. There is an exception to this rule for sheltered employment. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). A claimant bears the burden of presenting and supporting a claim for benefits. See 38 U.S.C. § 5107(a); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The duty to assist in the development and adjudication of a claim is not a “one-way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A claimant may have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In September 2019 and October 2019, the VA sent the Veteran correspondence requesting that he complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran has not completed and submitted a copy of the form to the VA. Potentially relevant evidence could have been provided by the Veteran through the filing of VA Form 21-8940, to include his full employment history, income, training and education, and specific circumstances of prior employment. The Veteran’s own statements and medical records reflect that during the period on appeal he has worked as a lawyer, taught classes for multiple entities, edited manuscripts, and made jewelry. He has reported difficulties with some of his employment activities but has also, at least at times, reported full-time employment. A statement from one employer in 2013 reported that the Veteran resigned due to his neck pain; however, subsequent treatment records suggest the Veteran had obtained a new position. Similarly, during the 2018 hearing the Veteran testified that he was currently working from home. There is no question that the Veteran has several disabilities that clearly impact his ability to work. The record also reflects that the Veteran has obtained various types of work over the years. The Board previously remanded the claim in April 2019, in part, to obtain this information and clarify the dates of employment. Based on the evidence of record, the Board cannot determine with any reasonable specificity when the Veteran has worked, how much income he has earned, and whether he has engaged in sheltered employment. Thus, the Board is unable to determine eligibility for TDIU benefits. The Veteran has failed in his duty to provide VA information solely within his control. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits.”); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim).On this record, the Veteran has not met his burden of establishing entitlement to TDIU and the claim, therefore, must be denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.