Citation Nr: 1753518 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-17 521A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation for anxiety disorder in excess of 30 percent prior to April 26, 2017, and in excess of 70 percent from that date. 2. Entitlement to an initial evaluation in excess of 10 percent for thyroid condition. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ralph Bratch, Attorney at Law ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 2007 to June 2009. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2010 rating decision of the Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was previously before the Board in March 2017 when it was remanded for further development. The RO adjudicated the Veteran's claims after development and in an August 2017 decision increased the rating for the Veteran's anxiety disorder to 70 percent from April 26, 2017. The RO has completed the requested development and the case has been returned to the Board for appellate review. FINDINGS OF FACT 1. During the appeal period, the Veteran's service-connected anxiety disorder is manifested by psychiatric symptoms causing occupational and social impairment, with deficiencies in most areas, but not total occupational and social impairment. 2. During the appeal period, the Veteran's thyroid condition manifested in symptoms such as fatigue, constipation, and mental sluggishness, but not muscular weakness, mental disturbance, or weight gain. 3. The Veteran is not unemployable by reason of his service-connected disabilities; the evidence of record shows that the Veteran is able to secure and follow substantially gainful employment consistent with his work and educational background. CONCLUSIONS OF LAW 1. During the appeal period, the criteria are met for a 70 percent rating, but no greater, for the Veteran's service-connected anxiety disorder. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9413 (2016). 2. During the appeal period, the criteria are met for a 30 percent rating, but no greater, for the Veteran's service-connected thyroid condition. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.12, 4.119, Diagnostic Code 7903 (2016). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.19, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify the Veteran was satisfied prior to the initial RO decision in a September 2009 letter. Pelegrini v. Principi, 18 Vet. App. 112 (2004). This letter also provided notice of information and evidence needed to establish disability ratings and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains relevant service treatment records, VA medical records, and the Veteran's own contentions. In response to the Board remand in March 2017, the Veteran has been provided with thorough and comprehensive medical evaluations as to the level of impairment related to anxiety disorder and hypothyroidism. Stegall v. West, 11 Vet. App. 268 (1998). The resulting VA opinions were factually informed, medically competent and responsive to the issues. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Board finds that there was substantial compliance with the March 2017 remand. II. Increased Rating (Schedular) a. Anxiety disorder Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130. In addition, the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130. However, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the RO initially certified the Veteran's appeal to the prior to August 4, 2014. Thus, the version of 38 C.F.R. § 4.125 conforming to the DSM-IV is applicable in the present case. In any event, the Board will still consider any private or VA examiner's discussion of both the DSM-IV and DSM-5 in adjudicating the current Veteran's PTSD claim, in order to provide the Veteran with every benefit of the doubt. 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). In addition, 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 moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). As provided by the General Rating Formula, a 50 percent rating is assigned when there is 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. 38 C.F.R. § 4.130. A 70 percent rating is in order when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. A veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan, 16 Vet. App. at 442. The Federal Circuit has clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration, but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. Id. The 70 percent disability rating regulation, in particular, contemplates initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies "in most areas." Id. Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level. Id. at 117. In evaluating the evidence, the Board has also noted various GAF scores contained in the DSM-IV, which clinicians have assigned. A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. Higher GAF scores denote increased overall functioning of the individual. For instance, a score of 31 to 40 represents "[s]ome 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; child frequently beats up younger children, is defiant at home, and is failing at school)." DSM-IV at 46-47. A score of 41 to 50 illustrates "[s]erious 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. A score of 51 to 60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. The Veteran's service-connected anxiety disorder is currently assigned a 30 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413, prior to April 26, 2017, and a 70 percent rating from that date. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an increased 70 percent evaluation for anxiety disorder prior to April 26, 2017 is warranted under Diagnostic Code 9413. 38 C.F.R. § 4.7. The Board concludes that a 70 percent rating for the Veteran's anxiety disorder from April 26, 2017 is the appropriate rating. That is, the Veteran's service-connected anxiety disorder is manifested by psychiatric symptoms causing occupational and social impairment with deficiencies in most areas that are indicative of the 70 percent rating criteria for the appeal period. See 38 C.F.R. § 4.130. The Board has also considered additional, similar symptomatology not specifically addressed in the 70 percent criteria under the General Rating Formula, but causing the appropriate level of occupational and social impairment for a 70 percent rating, under the General Rating Formula. See again Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The evidence of record supports a 70 percent rating for anxiety disorder for the entire appellate period. In making this determination, the Board has reviewed both the medical and lay evidence of record, including the lay statements from the Veteran and his friend; VA treatment records; VA psychological examinations; and private psychological professional opinions. Initially, the Board notes that the Veteran was involuntarily administratively separated from the United States Navy in 2009 due to his anxiety and cognitive disorders. In an April 2010 dental appointment record, the dentist noted that the Veteran's appointment took longer than it should have because the Veteran would not sit still and would not follow instructions. A July 2010 private psychological examiner opined that the Veteran's anxiety made him unable to deal with stress from a working environment, stating that in several aspects the Veteran was "seriously limited, but not precluded" from being successful at a job. In January 2011, the Veteran reported to the emergency room, reporting that over the previous three months he had increasing anxiety with insomnia, as well as depression. The Veteran denied suicidal or homicidal ideations. The examiner diagnosed anxiety and insomnia. In August 2011, the Veteran reported having to leave work early due to an anxiety attack. The Veteran reported increasing anxiety, depression, and mood changes. The Veteran blamed his thyroid disorder for causing his increasing anxiety. He also reported that he was unable to play chess "like he used to." The Veteran denied suicidal or homicidal ideations. In September 2011 the Veteran reported angry outbursts with his wife and disorganized thinking. The Veteran reported having fleeting thoughts of self-harm. Shortly thereafter, the Veteran was admitted to the hospital at the end of September 2011 into October for a few days due to his anxiety disorder, having complained of suicidal ideations and gestures. The admission doctor noted diagnosis of mood disorder and anxiety disorder. Notes from his hospital stay indicate the Veteran was under close supervision of 15 minute intervals to ensure safety and to prevent self-harm. The notes indicate the Veteran was under "active suicide status" at admission. The Veteran reported inability to concentrate, anxiety, but no current plan for suicide. At the April 2012 VA psychiatric examination, the examiner assigned a GAF score of 77 and chose the description box applicable to the 30 percent rating category for anxiety disorder. The examiner noted that the Veteran has both anxiety and depression, and that the symptoms could be differentiated between the diagnoses, e.g. anxiety manifesting as nervousness. The examiner made note that the Veteran had his Master's degree in public administration. At a chess event in 2015, the Veteran got into an altercation with another player over a perceived offense, and the Veteran said he "punched" the other player in the face. This led to a legal charge for the Veteran. The Veteran reported in August 2016 that he was enrolled in a PhD program. In a December 2016 written statement, the Veteran described his own history of dealing with his service-connected disabilities. The Veteran stated he had "many thoughts of death, albeit not plans of suicide." He described an inability to sleep; that it was "hard to silence [his] thoughts." The Veteran spent several sentences ascribing his problems like mental confusion to toxic, inflammatory foods like gluten. The Veteran claimed that he does have panic attacks but when he used to report them, the doctors would prescribe an over the counter medication normally used for headaches or arthritis pain. The Veteran also described several obsessional rituals such as taking an hour to plan for a grocery store trip, or tossing all the furniture to hunt for a bug. He stated he "spends a lot of time alone now." The Veteran described attempts to volunteer at various organizations from 2011 to 2013, but was accused of cursing at others (which he does not recall doing), and raising his voice at his boss, among other issues. He described "hiding under the covers" for "long periods" in 2011-2012 and 2013-2014. Additionally, the Veteran described his difficulty with social interactions and relationships at length, to include being disinvited from a chess club, and the ending of his marriage. The Veteran reasoned that his marriage ended partially based on his extremely frugal tendencies such as not using air conditioning, not using laundry detergent or toilet paper, and re-wearing clothes without washing them. The April 2017 VA psychiatric examination noted the Veteran had symptoms of anxiety, irritability, sleeping problems, concentration problems, and social anxiety. The examiner noted that there was more than one diagnosis of mental disorder but that the symptoms could not be distinguished between the disorders. The examiner chose the description box applicable to the 70 percent rating for mental disorders, noting deficiency in most areas, but not total occupational and social impairment. The Veteran reported working in a low demand job as a parking attendant at his college, as well as a short time as an intern for a professor. The Veteran reported that due to his anxiety disorder, he had a hard time concentrating, sometimes reading passages multiple times or having to re-do work multiple times, resulting in a delay in completing tasks. The Veteran also noted he received special accommodations from his school for his disorder. According to the examiner, the cognitive impairment was a result of the anxiety disorder. The Veteran also reported suicidal ideations in the past, in particular when his wife left him in 2011. He reported no plans for, or attempts at, suicide. The examiner noted the Veteran had adequate insight and judgment. In summary, consideration of the above psychiatric symptoms and circumstances reflects occupational and social impairment with reduced reliability and productivity that is indicative of a 70 percent rating throughout the appeal period. See 38 C.F.R. § 4.130. In addition, the Board has considered if the above medical and lay evidence provide a basis for assigning a 100 percent initial rating for anxiety disorder, even though several of the requirements for a higher rating are not shown. See Mauerhan, 16 Vet. App. 436 (stating that the rating criteria provide guidance as to the severity of symptoms contemplated for each rating; they are not all-encompassing or an exhaustive list). However, the Veteran does not meet the criteria for an even higher 100 percent evaluation for his service-connected anxiety disorder. 38 C.F.R. § 4.7. That is, the medical and lay evidence of record is not indicative of someone with psychiatric symptomatology causing total occupational and social impairment, which is required for the 100 percent rating. 38 C.F.R. § 4.130. The Board acknowledges that the Veteran has exhibited some of the symptoms listed under the 100 percent rating criteria, such as danger of hurting self or others and grossly inappropriate behavior. However, the frequency of these symptoms is in question because no other medical or lay evidence records such severe symptoms. Moreover, the evidence of record does not demonstrate total occupational and social impairment due to the Veteran's psychiatric symptoms from his anxiety disorder. See again Vazquez-Claudio, 713 F.3d at 118 (the Veteran's psychiatric symptoms must cause the level of occupational and social impairment specified in the General Rating Formula). In particular, the Board finds that the Veteran does not have total social impairment as contemplated by a schedular 100 percent evaluation. See 38 C.F.R. § 4.130. In this regard, the Board notes that the Veteran has difficulty maintaining relationships; he stated he has no relationship with his mother or father, which he states is due to their own addiction problems. The Veteran is no longer married, and he claims that his wife committed fraud upon ending the marriage by committing identity theft and stealing his assets. The Veteran stated that he does make attempts to socialize by playing basketball but he finds it difficult due to his introverted nature. Moreover, the Board notes that the 70 percent evaluation he now has for anxiety disorder encompasses an inability to establish and maintain effective relationships. With regard to occupational impairment, the Veteran has specifically alleged having no occupational capacity as a result of his anxiety disorder and described his challenges in obtaining and retaining employment. The Board acknowledges that the Veteran has reported working and going to school at various points during the appeal period, albeit with difficulty. The Veteran is able to complete school tasks with accommodation, and to work at low-stress jobs. Accordingly, the Board finds that the evidence supports an increased disability rating of 70 percent, but no higher, for the Veteran's service-connected anxiety disorder period prior to April 26, 2017; and the continuation of a 70 percent rating for anxiety disorder from that date. 38 C.F.R. § 4.3. b. Thyroid condition The Veteran is currently rated for hypothyroidism at a 10 percent level under Diagnostic Code 7903. Under Diagnostic Code 7903, a rating of 100 percent requires cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. A rating of 60 percent requires muscular weakness, mental disturbance, and weight gain. A rating of 30 percent requires fatigability, constipation, and mental sluggishness. A rating of 10 percent requires fatigability, or; continuous medication required for control. See 38 C.F.R. § 4.119, Diagnostic Code 7903. Despite the conjunctive "and" being used under this code, it is not required that all listed symptoms at the 30 percent level be demonstrated in order to substantiate a rating at that level. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Rather, the Board must determine whether a particular rating is more nearly approximated than the lower rating in accordance with 38 C.F.R. § 4.7. Treatment records indicate the Veteran's weight was 153 pounds in August 2011, 150 pounds in April 2012, 148 pounds in January 2013, and 151 pounds in August 2016. Treatment records record the Veteran's pulse as 74 in November 2011; 55 on April 28, 2012; 65 in January 2013; 95 in May 2014; and 63 in August 2016. According to the VA treatment records, in August 2009, the Veteran complained of fatigue, concentration problems, and difficulty concentrating when not medicated. In January 2010, the Veteran reported that he felt OK with no fatigue or constipation; he was on medication. In August 2011, the Veteran reported "problems with his thyroid," with reported symptoms like functional decline in comprehension. A September 2011 note documented a complaint of constipation. In April 2012, the Veteran presented with symptoms of "mental slowness," or sluggishness, and difficulty concentrating for the previous one or two weeks. In May 2012 the Veteran reported lethargy. At the April 2012 VA thyroid examination, the examiner noted that the Veteran had normal reflexes and no significant symptoms for hypothyroidism. The examiner opined that hypothyroidism would not impact the Veteran's ability to work. In a February 2014 note, the Veteran showed no muscle pain or intolerance of heat or cold. In a September 2016 endocrinology consultation note, the examiner documented that the Veteran's thyroid condition was "undertreated." The Veteran was reported to be an avid runner with no problems with exercise intolerance or weight change. However, the doctor did record issues with constipation and concentration. At the April 2017 VA thyroid examination, the Veteran had a TSH level of 0.28, below the normal range of 0.3 - 5.0. The examiner noted normalization of the thyroid function with medication. There was no exophthalmos. The Veteran's pulse was 66, and the examiner noted that a review of vital signs since 2013 showed objectively normal heart rate in the mid 60s, consistent with being an avid runner. Reflexes were normal with no significant symptoms reported. The examiner noted that objectively, the Veteran's thyroid functions were normal, but that the "existence and severity of symptom-based diagnoses cannot be fully corroborated." Although the Veteran demanded new laboratory testing, the examiner gave a supported rationale of why further laboratory testing was unnecessary. In light of the competent and credible evidence of significant symptomatology associated with a 30 percent rating, the Board finds that the evidence in favor of a 30 percent rating for the appeal period has attained relative equipoise with the evidence against such rating. The service-connected hypothyroidism has been manifested by fatigue, constipation, and mental sluggishness, reported in the medical record. With resolution of all reasonable doubt in favor of the claim, the Board concludes that a 30 percent rating is warranted for hypothyroidism. However, the Board concludes that the criteria for a rating in excess of 30 percent are not more nearly approximated by the competent and credible medical evidence of record. 38 C.F.R. § 4.7, 4.119 Diagnostic Code 7903 (2016). In particular, the next rating of 60 percent, manifested by symptoms like muscle weakness, mental disturbance, or weight gain, is not shown. The Veteran regularly runs for exercise. The Veteran's weight and pulse have remained relatively stable over the period of appeal. Symptoms such as cold intolerance, cardiovascular involvement, and bradycardia, have not been consistently reported, objectively observed, or medically associated with the Veteran's service-connected disability. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, to the extent any portion of the claim is herein denied, the preponderance of the evidence is against the claim and that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. TDIU The Veteran has contended via his representative that he is unemployable due to his service-connected conditions. During the adjudication of these claims, the Veteran did not submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, despite being notified to do so and provided with a form. Nonetheless, the evidence of record shows that the Veteran has not been rendered unemployable because of his service-connected disabilities, and thus TDIU is not warranted. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2016). In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose, supra. By order of this Board decision the Veteran is rated at 70 percent for anxiety disorder and 30 percent for hypothyroidism during the period of appeal. Accordingly, the Veteran meets the schedular requirements for TDIU evaluation. In the case at hand, the Veteran's naval rating during his time in active service was in aviation ordnance. The Veteran has not provided evidence relating to other education or job training beyond what he has described to examiners during medical appointments. The RO sent a TDIU Form 21-8940 but the Veteran did not return it. Governing regulation provides that marginal employment shall not be considered substantially gainful employment. For these purposes, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). In this case, the Veteran has not reported his annual income, and indeed, has not contended that he lives in poverty. It appears from the evidence of record that the Veteran is enrolled in a PhD program and is also employed. A July 2010 private psychological examiner opined that the Veteran's anxiety made him unable to deal with stress from a working environment, stating that in several aspects the Veteran was "seriously limited, but not precluded" from being successful at a job. In the April 2012 VA examination for thyroid disorders, the examiner reported that the Veteran's thyroid disorder did not impact the Veteran's ability to work. The April 2012 VA psychiatric examiner noted that the Veteran had completed a Master's Degree in Public Administration. The examiner noted that the Veteran reported that when he feels overwhelmed, he can exhibit pressured speech and difficulty completing tasks. The Veteran also reported at the April 2012 VA psychiatric examination that he had been unable to find employment in his chosen field of grant writing. The Veteran reported that he was working as a parking attendant at the college he attends since October 2016. Prior to that the Veteran was doing an apprenticeship for a professor for a couple of months. The Veteran reported that he did have to re-do and re-read work multiple times which delayed him in completing tasks. The Veteran has not reported an inability to complete activities of daily living such as routine personal hygiene, feeding himself, or dressing. It appears that, although the Veteran has reported difficulty finding work in his chosen field, he has now enrolled in a PhD program and is employed. The Veteran's high rating for anxiety in itself is a recognition that the impairment makes it difficult to obtain and keep employment. Further, the Veteran's service connected disabilities do not appear to have prohibited him from pursuing an advanced education. The preponderance of the evidence does not otherwise indicate that he was unemployable due to service-connected disabilities during the claims period. Accordingly the benefit-of-the-doubt rule is therefore inapplicable and the claim for TDIU must be denied. ORDER Entitlement to an initial evaluation for anxiety disorder of 70 percent, but no higher, is granted prior to April 26, 2017. Entitlement to an evaluation for anxiety disorder in excess of 70 percent after April 26, 2017, is denied. Entitlement to an initial evaluation of 30 percent, but no higher, for hypothyroidism is granted for the appeal period. Entitlement to TDIU is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs