Citation Nr: 21022990 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-16 724 DATE: April 19, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for panic disorder without agoraphobia is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the severity, frequency, and duration of the Veteran’s panic disorder without agoraphobia more closely approximated total social impairment during the appeal period. 2. The evidence is at least in equipoise as to whether the Veteran’s service-connected panic disorder without agoraphobia precludes him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for panic disorder without agoraphobia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9412. 2. The criteria for the assignment of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to December 1989. This case is before the Board of Veterans Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision denied entitlement to an initial rating in excess of 70 percent for panic disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMR), which vacated the Board’s decision finding that the Board failed to consider entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). These matters were previously remanded for additional development in a September 2020 Board decision. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran’s attorney has requested consideration of service connection for Lyme disease but has not submitted an application form for benefits. Service connection for Lyme disease was denied in a June 2014 rating decision, and the Veteran did not appeal that decision. Pursuant to 38 C.F.R. §3.155, the Veteran is informed that an application form (e.g., VA Form 21-526 EZ) is necessary for consideration of any service connection claim for benefits. 1. Entitlement to an initial disability rating in excess of 70 percent for panic disorder without agoraphobia Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s panic disorder without agoraphobia is rated under the General Rating Formula for Mental Disorders. Under that criteria, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example: 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. 38 C.F.R. § 4.130, DC 9412. A 70 percent rating is warranted 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, for example: 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 warranted for total occupational and social impairment, due to such symptoms as, for example: 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. The symptoms listed in VA’s general rating formula for mental disorders are not an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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). “[T]he presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level.” Id. at 22. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). The evaluation must be 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 time of examination. Id. Further, a rating cannot be assigned solely based on social impairment. 38 C.F.R. § 4.126(b). This appeal arises from the original assignment of a disability evaluation following an award of service connection, thus the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Turning to the evidence of record, a May 2015 letter from the Veteran’s private psychiatrist, A.H., M.D., noted that the Veteran suffered from significant anxiety which required consistent care. At a February 2016 VA examination, the Veteran was diagnosed with panic disorder without agoraphobia and posttraumatic stress disorder (PTSD). The Veteran’s symptoms included depressed mood, anxiety, panic attacks more than once a week, near continuous panic, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and motivation, inability to establish effective relationships, and impaired impulse control. He reported that he continued to work at the same job as a manager at a national chain store, which he had maintained since his release from active service. The examiner opined that the Veteran’s psychiatric disorders resulted in occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner also found that the Veteran had normal routine behavior with the ability to engage in self-care and conversation. In an October 2016 statement, Dr. A.H. indicated that the Veteran continued to experience significant anxiety. Dr. H. opined that the Veteran experienced severe impairment due to his anxiety, particularly related to thought processes, memory, and interpersonal communication. She noted that these difficulties greatly impair his execution of important job functions and requirements. Additionally, she noted that he had great difficulty in social relationships and was unable to maintain normal communication with people other than very close and trusted contacts. She noted that his anxiety causes panic symptoms in his occupation and that he struggles with inappropriately needing to “escape” from situations and interactions in his job, despite a current medication regimen. An October 2016 letter from a social worker noted that the Veteran had several panic attacks during couples counseling, during which he needed to leave the office to settle down. In an April 2017 letter, a different therapist noted that the Veteran had significant panic disorder symptoms and that he continued to experience severe occupational and social impairment due to thought process and interpersonal communication problems. The therapist noted the Veteran’s report that his panic attacks caused him to engage in inappropriate behavior where he may say or do something that is socially or professionally inappropriate or offensive. Finally, she stated that he had issues with memory loss including the inability to remember the names of co-workers, customers, and close relatives, as well as difficulty remembering his work schedule. At a December 2017 VA examination, the Veteran complained of increasingly worse short-term memory loss, including forgetting people he knows well and asking for help on tasks he had completed before. He also reported increased anger and irritability, especially on the road. He noted that his coworkers avoid him because of his moods. He reported difficulty holding discussions with customers. He noted that when he is working at the cash register, he feels like something bad is going to happen and he requires coworkers to take over. However, he reported that he still maintains his job which he has held for over twenty years and noted that he was still with his wife of many years as well. He reported daily panic attacks. The Veteran reported that he blanks out sometimes and has “snapped” at a senior manager to take over his work. His wife reported some negligence in personal hygiene, noting that he will go days without bathing. The examiner reported that the Veteran’s symptoms included depression, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired short and long term memory, memory loss for names of close relatives, disturbances of mood and motivation, inability to establish and maintain relationships and neglect of personal appearance and hygiene. He denied any suicidal or homicidal ideations, hallucinations or delusions, obsessional rituals and he remained oriented to time and place. The examiner opined that the Veteran’s symptoms manifested as occupational and social impairment with deficiencies in most areas. In a January 2019 entry from Heart and Soul Integrative Health, A.O., M.D. noted that the Veteran presented with severe foggy thinking, severe trouble concentrating, was always forgetful and had panic attacks and mild mood swings. In a November 2020 VA mental disorders examination conducted via video telehealth, the examiner opined that the Veteran’s diagnosed panic disorder without agoraphobia resulted in occupational and social impairment with reduced reliability and productivity. At this examination, the Veteran reported that he had been married for nineteen years and that his marriage was good. He denied psychiatric hospital stays and denied suicide attempts. The Veteran reported daily panic attacks and noted that he gets irate and frustrated easily. He reported panic attacks while driving over bridges and at the movie theatre. He did not report mania or psychosis. He noted that he takes valium to help with his panic attacks. His wife reported that the Veteran feels depressed and gets suicidal ideations. The examiner found that the symptoms of the Veteran’s service-connected panic disorder included depressed mood, anxiety, panic attacks that occur weekly or less often, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances. On examination, the Veteran was pleasant, cooperative, well-groomed with good eye contact. His speech was of a normal rate and volume, his mood was mildly depressed, affect was normal, he had a clear sensorium (functioning normally and not lacking ability to concentrate and think clearly). The Veteran was found to be clear and logical with good judgment and insight. He denied suicidal and homicidal ideations and denied auditory and verbal hallucinations. Analysis After thoroughly reviewing the evidence of record during the appeal period, the Board finds that the objective evidence of record does not demonstrate symptoms more nearly contemplated by the 100 percent rating criteria that result in total social impairment. Specifically, the preponderance of the evidence is against finding gross impairment in thought processes or communication, inability to maintain minimal personal hygiene, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, memory loss of own occupation or name, or disorientation to time or place. For the entirety of the appeal period, persistent delusions and hallucinations have not been found on examination or described by a mental health provider as a symptom the Veteran experiences due to his panic disorder. See February 2016, December 2017, and November 2020 VA examinations. During his December 2017 VA examination, the Veteran did report that while at home he sees a “shadowy dark figure” in the house on a regular basis. However, despite this report, at this 2017 VA examination, persistent delusions and hallucinations were not found to be a symptom of the Veteran’s service-connected panic disorder. By his November 2020 VA examination, the Veteran denied experiencing auditory or visual hallucinations. Further, as the 2017 VA examination is the only time during the appeal period that the Veteran mentioned seeing a shadowy figure or anything resembling a hallucination, this report cannot be categorized as a “persistent” hallucination. Additionally, the preponderance of the evidence does not reflect gross impairment in thought processes or communication. The February 2016 and December 2017 VA examiners did not find gross impairment in thought processes or communication to be a symptom of the Veteran’s panic disorder. Further, the November 2020 VA examiner noted that the Veteran was functioning normally and not lacking the ability to concentrate and think clearly. He described the Veteran as coherent and logical with good judgment and insight. He also noted that he was pleasant and cooperative with speech a normal rate and volume. The February 2016 VA examiner also noted that the Veteran had the ability to engage in conversation. The Board acknowledges that the Veteran has described difficulty holding discussions with customers while working and therapists have noted severe impairment in interpersonal communication. See December 2017 VA examination and October 2016 and April 2017 statements from private therapists. However, the Board does not find that these statements by the Veteran and therapists amounts to “gross” impairment in communication, particularly when considered in the context of the entire record which reveals that the Veteran for the most part, is able to think clearly and communicate with others. Further, during the appeal period, a persistent danger of hurting himself or others was not found by VA examiners to be a symptom of his panic disorder. See February 2016 and December 2017 VA examinations. During his November 2020 VA examination, the Veteran denied suicidal and homicidal ideations, although his wife reported that he did experience suicidal ideation. Further, private therapists who evaluated the Veteran’s mental health have not found suicidal ideation to be a component of his mental health disorder. See October 2016 and April 2017 statements from private providers. Despite his wife’s report of suicidal ideation, this does not suggest a “persistent” danger of hurting himself because suicidal ideation has not been reported by the Veteran or described by mental health providers over the years as a symptom of his panic disorder. Throughout the appeal period, the Veteran has consistently been described as oriented to time and place. See October 2016, December 2017, and November 2020 VA examinations. In terms of the Veteran’s ability to perform activities of daily living, including maintenance of minimal personal hygiene, the February 2016 VA examiner noted that the Veteran had the ability to engage in self-care. She did not report neglect of personal appearance and hygiene as a symptom of the Veteran’s service-connected panic disorder. Similarly, the November 2020 VA examiner described the Veteran as well groomed. Although the 2017 VA examiner reported that the Veteran presented disheveled, this was the only indication in the record of the Veteran neglecting his appearance and hygiene. Lastly, an April 2017 therapist reported that the Veteran’s panic attacks result in inappropriate behavior, including causing him to say or do inappropriate or offensive things. She did not elaborate or discuss any specific instances where the Veteran said or did something inappropriate which makes it difficult to evaluate whether his behavior can be described as “grossly” inappropriate. However, the Board finds that the record does not contain specific examples where the Veteran exhibited grossly inappropriate behavior. In any event, as just discussed, the Veteran does not experience many of the other symptoms contemplated by a 100 percent evaluation. Finally, the Board finds that the preponderance of the evidence does not reflect total social impairment which is required for a 100 percent evaluation. The Board acknowledges the Veteran’s difficulty in establishing and maintaining effective relationships; however, total social impairment has not been shown. Significantly, the Veteran has managed to stay married for nineteen years and reports that his marriage is good. See November 2020 VA examination. Based on the above analysis, the Board finds that the Veteran’s panic disorder without agoraphobia does not more closely approximate a 100 percent evaluation. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial evaluation higher than 70 percent for his service-connected panic disorder. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a TDIU A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability to perform the type of activities required by the occupation at issue, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Initially, the Board notes that the Veteran meets the schedular criteria for a TDIU as he has a single service-connected disability rated at 60 percent or more, specifically, a 70 percent evaluation for panic disorder without agoraphobia. He is also service connected for tinnitus at 10 percent disabling and right knee patellar tendonitis which is noncompensable. See 38 C.F.R. § 4.16(a). The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected panic disorder. See October 2020 Application for Increased Compensation based on Unemployability. The Board agrees. In this case, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is incapable of obtaining or maintaining substantially gainful employment due to his service-connected panic disorder without agoraphobia. Information from the Veteran’s employer, Costco, notes that the Veteran began employment with the company in 1992 and was currently employed as a cashier assistant. The forms reflect that the number of hours the Veteran works daily and weekly varies but note that he is guaranteed 24 hours a week of work. His employer noted that he was currently on a leave of absence since April 2020. See October and November 2020 VA Forms 21-4192, Request for Employment Information. The Veteran reported that his panic disorder affected his full-time employment in January 2018 and noted that he became too disabled to work in January 2018. He reported that the most he had ever earned in one year was in 2017 while working at Costco as a supervisor. See October 2020 Application for Increased Compensation based on Unemployability. Regarding the economic component of his claim, the evidence reflects that although the Veteran is currently employed with Costco, he is only earning a marginal income that does not exceed the poverty threshold for one person as determined by the U.S. Department of Commerce. Specifically, in 2017, the Veteran’s gross annual income was $57,087.21. However, by 2018, his gross annual income had shrunk to $4,759.42, well below the poverty threshold for one person. By 2019, the Veteran’s gross annual income was only $2,591.39. An April 2020 pay stub reflects that the Veteran earned $10,102.54, year to date; however as noted above, his employer, Costco reported that he was on a leave of absence since April 2020. Further, the Veteran reported that he took the leave of absence in April 2020 due to his panic disorder and increasing anxiety. He reported that he is relieved because he feels he cannot go back to work as his anxiety is “very bad now.” See November 2020 VA examination. Prior to taking a leave of absence, he noted that he had to use the Family and Medical Leave Act (FMLA) to be able to call in sick five days per month due to his panic disorder. He noted that he has used all five days every month. He also reported using all his vacation days, personal time off and sick days. The Veteran reported that his employer allows him to leave work early if necessary due to his diagnosis, suggesting that he receives an accomodation because of his panic disorder. See December 2017 VA examination. Turning to the non-economic component of the Veteran’s claim, the Board finds that the Veteran’s service-connected panic disorder without agoraphobia renders him unable to perform the mental acts required by employment. The Veteran reports that he uses valium daily to function. However, despite taking valium, he still experiences severe anxiety and panic. He noted that having to work at the cash register at work is the main trigger of his panic attacks. He says because he is “confined” and “can’t move” if he needs to, he will have a panic attack. The Veteran also described feeling like something bad is going to happen when he is working at the cash register and needing to ask coworkers to take over for him. See December 2017 VA examination. The record also reflects that the Veteran had several panic attacks during couples counseling, during which time he needed to leave the office to settle down. See October 2016 letter. In December 2017 and November 2020 VA examinations, the Veteran reported daily panic attacks. Further, the February 2016 and December 2017 VA examiners noted that his panic attacks occur more than once a week, with the February 2016 examiner describing near continuous panic. Dr. H. explained the Veteran’s panic attacks as they related to employment, noting that his anxiety causes panic symptoms and he struggles with inappropriately needing to “escape” from situations and interactions in his job, despite his current valium regimen. See October 2016 statement by Dr. H. In sum, the Board finds that the near continuous panic experienced by the Veteran and panic attacks that now occur daily; coupled with other symptoms of his panic disorder described below, render the Veteran unable to obtain or maintain substantially gainful employment. Significantly, the Veteran’s memory and thought processes are impacted by his panic disorder. Dr. H. in an October 2016 statement noted that the Veteran experienced severe impairment particularly related to his memory and thought processes which greatly impair his execution of job functions and requirements. In an April 2017 letter, another therapist noted that the Veteran had issues with memory loss including the inability to remember the names of co-workers, customers, and close relatives, as well as difficulty remembering his work schedule. In addition, during a December 2017 VA examination, the Veteran complained of increasingly worse short-term memory loss, including forgetting people he knows well and asking for help on tasks he had completed before. The 2017 examiner reported impaired short and long-term memory, memory loss for names of close relatives and difficulty in understanding complex commands. Dr. O., from Heart and Soul Integrative Health, reported that the Veteran was forgetful, with foggy thinking and had severe trouble concentrating. See January 2019 medical record. The Board finds that the Veteran’s impaired memory which causes him to forget his work schedule and the names of co-workers and customers, as well as resulting in the need to ask for help again on tasks he has completed before, would make him unable to maintain substantially gainful employment. Finally, the February 2016 and December 2017 VA examiners described an inability to establish and maintain effective relationships as a symptoms of the Veteran’s mental health disorder. Further, in his November 2020 VA examination, the Veteran reported that it was hard for him to keep his job at Costco because of the need to be around people. He reported a hard time getting along with coworkers and noted that they avoid him because of his moods. He also described difficulty holding discussions with customers and noted that he has “snapped” at a senior manager to take over his work. See December 2017 VA examination. Dr. H. reported that the Veteran is unable to maintain normal communication with people other than very close and trusted contacts, (see October 2016 statement), and in an April 2017 letter, another therapist noted that the Veteran’s panic attacks cause him to engage in inappropriate behavior, including saying or doing things that are professionally inappropriate. The Veteran also reports that he gets irate and frustrated easily, (see November 2020 VA examination), and the 2016 VA examiner found impaired impulse control to be a symptom of the Veteran’s service-connected panic disorder. The Board acknowledges that the Veteran experiences physical disabilities which also make employment difficult, including headaches and chronic diffuse joint and muscle pain and inflammation. See August 2016 and June 2018 medical records from A.O., M.D. The Board also notes that the November 2020 VA examiner ultimately determined that the Veteran’s psychiatric symptoms were not of the nature and severity that would preclude gainful employment. However, he also noted that the Veteran does have panic attacks at work which can impact his occupation and explained that the Veteran may become emotionally overwhelmed, anxious, and unfocused at times. Notwithstanding these findings, the Board notes that the ultimate determination of unemployability falls on VA not the medical examiner and finds that the Veteran’s service-connected panic disorder alone renders him unemployable. In conclusion, the Board notes that the Veteran is only maintaining marginal employment which is not considered substantially gainful employment. Further, the Board finds that the Veteran’s daily panic attacks and severe anxiety, coupled with his loss of memory, impaired thought processes, inability to handle work stress, impaired impulse control and inability to establish effective relationships with and get along with coworkers, taken together, would render him unemployable. Based on the above analysis, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected panic disorder without agoraphobia. As such, a TDIU is warranted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.