Citation Nr: 18154556 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 07-38 831 DATE: November 30, 2018 ORDER A 50 percent evaluation, but no higher, for generalized anxiety disorder for the period of October 11, 2006 through December 6, 2015, but no earlier, is granted. An evaluation in excess of 70 percent for generalized anxiety disorder for the period beginning December 7, 2015, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 7, 2015, is denied. FINDING OF FACT 1. For the period of October 11, 2006 through December 6, 2015, the Veteran’s psychiatric disability is shown to more closely approximate occupational and social impairment with reduced reliability and productivity. 2. For the appeal period of October 11, 2006 through December 6, 2015, the Veteran’s psychiatric disability is not shown to result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; 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 worklike setting; or, inability to establish and maintain effective relationships. 3. Throughout the appeal period, the Veteran’s psychiatric disability is not shown to result in total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication, persistent delusions or hallucinations; grossly inappropriate behavior, persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 4. Prior to December 7, 2015, the Veteran’s service-connected psychiatric disability does not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW 1. The criteria for a 50 percent evaluation, but no higher, for generalized anxiety disorder for the period of October 11, 2006 through December 6, 2015, but no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9400. 2. The criteria for an evaluation in excess of 70 percent for generalized anxiety disorder for the period beginning December 7, 2015, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9400. 3. The criteria for entitlement to TDIU prior to December 7, 2015, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1975 to May 1980. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). There, the RO denied a claim for entitlement to a rating in excess of 30 percent for generalized anxiety disorder. During the pendency of the appeal, the Veteran was awarded a 70 percent evaluation for his psychiatric disorder, effective December 7, 2015, in a March 2016 rating decision. This case has been remanded by the Board in March 2015 and again in January 2017; it has been returned to the Board at this time for further appellate review following substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Increased Evaluation for Psychiatric Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. As noted above, the Veteran filed his claim for increased evaluation for his psychiatric disability on October 11, 2006; in rendering this decision, the Board has considered the evidence of record since October 11, 2005. See 38 C.F.R. § 3.400(o). During the period prior to December 7, 2015, the Veteran’s psychiatric disability has been assigned a 30 percent evaluation; for the period beginning December 7, 2015, his psychiatric disability has been assigned a 70 percent evaluation. All evaluations have been assigned under Diagnostic Code 9400, which uses the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9400, General Rating Formula for Mental Disorders. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See Id. A 70 percent rating is assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or 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. See Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Court) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. Turning to the evidence of record, the Veteran was afforded a VA medical examination in November 2006. On examination, the Veteran was clean and neatly groomed with unremarkable psychomotor activity, spontaneous speech, and a cooperative attitude. His affect was constricted, with a “jittery” mood; his attention was intact and he was oriented to person, time and place. The Veteran’s thought processes and content were unremarkable. He did not have any hallucinations or delusions, his judgment and insight were normal, and he had average intelligence. The Veteran did not have any sleep impairment, inappropriate behaviors, obsessive or ritualistic behaviors, or homicidal or suicidal thoughts. The Veteran did have a history of panic attacks 2-3 times a month prior to seeking treatment with a neurologist 4 years prior to the examination; he reported feeling “jittery” and social withdrawn daily during the examination. The examiner noted that the Veteran’s impulse control was good without any episodes of violence; his remote, recent, and immediate memories were intact. The Veteran was able to maintain minimum personal hygiene and there were no problems with his activities of daily living as a result of his psychiatric disorder. Finally, the Veteran was noted as being employed full-time at that time. After examining the Veteran and reviewing the record, the VA examiner diagnosed the Veteran with generalized anxiety disorder with depressive features and panic disorder. She opined that they were two separate and distinct diagnoses with no relation to one another; she further opined that there was no total occupational and social impairment due to the Veteran’s mental disorder signs and symptoms. Impairment in mood was controlled by continuous medication. The examiner also found no reduced reliability and productivity due to mental disorder symptoms, and answered “no” to the question of whether there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, with generally satisfactory functioning. She also answered “no” to the question of whether there were any mental disorder signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. In January 2007, during a private psychiatric examination with Dr. V.B., the Veteran reported stated that he spends all day working, and at night he stayed at home accompanied by his family. He said that he avoided social contact, and did not participate in social activities or social groups. During the examination, the Veteran was noted to be well nourished, with good personal hygiene, fair eye contact, and adequate, logical speech. He was not spontaneous in his responses, however; he did not have any suicidal ideations or attempts, and there was no evidence of hallucinations or memory loss. He was oriented to time, place, and person. Dr. V.B. also noted that the Veteran was irrelevant at times during the interview, and had an anxious mood and poor concentration. In an August 2007 notice of disagreement, the Veteran stated that he felt “anxious, irritable, ill-humored; depressed, restlessness” and had a history of “tremors, isolation, poor impulse control; poor concentration, nightmares, fear of losing control; apathy, dizziness and audiovisual hallucinations.” In his December 2007 substantive appeal, VA Form 9, the Veteran added that he is affected by “notable tremors in all [his] body, noise irritability, depression affecting [his] performance, forgetting [things], judgment difficulty and feel[ing] panic.” He also stated that he is insecure around people. In October 2008, Dr. V.B. again examined the Veteran, at which time he reported stated that he worked during the day, but worked from home three times a week. He also stated that he did not participate in group activities, social activities, and had difficulty establishing social interactions with others. During the examination, the Veteran was noted to be well nourished, with good personal hygiene, fair eye contact, and adequate, logical speech. He was noted to be spontaneous but sometimes irrelevant during the examination. There was no evidence of suicidal attempts or ideations, hallucinations, or memory loss. He was oriented to person, time, and place. The Veteran had a depressed mood and poor concentration, with evidence of blocking. Dr. V.B. concluded that the Veteran’s psychiatric disability affected his social, family, and occupational performance. Also in October 2008, the Veteran underwent a VA examination, in which he stated that he had no close friendships at work and that he had a strained relationship with his wife. The Veteran stated that he felt “blocking” and anxiety at work, and a feeling of being “disconnected.” He only met with his family on special occasions, and that his panic attacks were controlled by medication. On examination, the Veteran was clean, neatly groomed, and appropriately dressed, with tense psychomotor activity, unremarkable speech, and a hostile attitude. The examiner noted that the Veteran was very guarded, judgmental, and argumentative during the examination; he reacted angrily when initially questioned about his psychiatric disability. The Veteran’s attention was intact and he was oriented to person, time and place. The Veteran’s thought processes were unremarkable, and his thought content was preoccupied with one or two topics with ideas of reference. There was no evidence of hallucinations, delusions, sleep impairment, inappropriate behavior, obsessive or ritualistic behaviors, or homicidal or suicidal thoughts. The Veteran reported panic attacks of variable frequency that were controlled mostly by taking medication, although he further reported having symptoms 2-3 times a day. The Veteran additionally reported a history of violence with his children, which caused his oldest child to leave the house at age 16; he indicated that his impulsive anger was controlled with medication. His recent, remote, and immediate memories were normal, he was able to maintain minimum personal hygiene, and he did not have problems with his activities of daily living due to his psychiatric disability. Finally, the Veteran was noted as being employed full-time at that time. The October 2008 VA examiner did not find total occupational and social impairment due to mental disorder signs and symptoms, nor deficiencies in judgment, thinking, family relations, work, mood or school. The examiner also did not find reduced reliability and productivity due to mental disorder symptoms, or occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks. The examiner also answered “no” to the question of whether there were “mental disorder signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.” The examiner noted that the Veteran’s psychiatric disability was controlled by continuous medication. In September 2009 VA treatment record, the VA psychiatrist noted that the Veteran had adequate hygiene, was cooperative, had tremors, was able to walk, and was coherent, logical, and circumstantial. He did not have delusions, abnormalities of perception, or suicidal ideas or plans; he had an anxious mood with full affect. He was oriented in all spheres, with an intact memory, normal abstraction, and fair judgment and insight. Substantially similar findings were noted in an October 2009 VA treatment record. The Veteran underwent another private psychiatric examination with Dr. V.B. in September 2009; during that examination, Dr. V.B. noted substantially similar psychiatric symptomatology as noted in her previous examination reports. She did note at that time that the Veteran stated that he was sometimes unable to complete a normal work day because of his emotional condition. He reported that he liked being alone, was withdrawn from others, did not visit friends or relatives on a regular basis, and had difficulty dealing both with his family and colleagues at work. In a November 2011 VA addendum opinion, the VA examiner opined that he could not separate the symptoms of the Veteran’s generalized anxiety disorder and his “strong borderline personality features.” In January 2015, the Veteran underwent another VA examination at which time he was noted to have generalized anxiety and panic disorders. During the examination, the Veteran was noted to have anxiety, panic attacks that occurred weekly or less, chronic sleep impairment, and disturbances of motivation and mood, which the examiner concluded resulted in social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Furthermore, the examiner noted that the Veteran was well-developed and well-nourished with adequate hygiene and a cooperative attitude; he had a right hand tremor. He was spontaneous with good eye contact; he was alert, aware of the situation, and in contract with reality. There was no evidence of psychomotor retardation or agitation; his speech was clear and goal-directed with appropriate volume. The Veteran’s mood was mildly depressed and anxious, with a constricted affect. There was no evidence of delusions, hallucinations, or suicidal or homicidal ideations or plans. He was fully oriented with normal abstraction capacity, preserved cognitive functions, and superficial insight and judgment. Finally, the Veteran was noted to be working full-time at that time as a supervisor at a company for more than 20 years. After review of the claims file and examination of the Veteran, the VA examiner opined that the Veteran’s mood instability could limit his capacity to interact effectively and on a sustained basis with other individuals. The examiner stated that “social function at work environment that involve interaction with the public, responding appropriately to persons in authority or cooperative behaviors involving coworkers can be limited.” The Veteran’s generalized anxiety disorder was not severe enough to render him unemployable, and his “condition although chronic has been mostly stable.” The Veteran submitted a Disability Benefits Questionnaire (DBQ) from Dr. V.B. on December 7, 2015, at which time she diagnosed the Veteran with schizoaffective disorder and schizotypal personality disorder in addition to his generalized anxiety disorder. During that examination, the Veteran was noted to have a depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, poor concentration, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideations by history, past history of hallucinations, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. She noted that the Veteran stopped working in September 2015 due to his physical and emotional condition. Dr. V.B. opined that the symptoms could be distinguished, with excessive anxiety, restlessness and poor concentration attributable to generalized anxiety disorder. However, the examiner stated that it was not possible to differentiate what portion of the occupational and social impairment was caused by the disorders. Dr. V.B. concluded that the Veteran’s psychiatric symptomatology resulted in social and occupational functioning with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood In a May 2016 VA treatment record, the Veteran was noted as being appropriately dressed, displayed adequate hygiene, and appeared his age. The Veteran was engaged, exhibited appropriate speech, demonstrated adequate concentration, and showed no memory problems. His mood was depressed, and reported occasional suicidal ideation but no homicidal ideation. He reported taking advantage of an early retirement plan in September 2015. The Veteran’s test results suggested that he had above average intellectual abilities which did not appear to affect his current functioning. The Veteran did not have any perceptual disturbances and fair insight and good judgment. In a January 2017 addendum opinion, after a review of the claims file, the examiner opined that the Veteran’s psychiatric disability resulted in “occupational and social impairment with occasional decrease in work efficiency.” For the period prior to December 7, 2015, the Board finds that the Veteran’s psychiatric disability picture more closely approximates to 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. However, a 70 percent evaluation is not warranted during that period as the evidence does not demonstrate that the Veteran’s psychiatric disability picture was more closely approximate to that criteria. Specifically, although the Veteran repeatedly reported being socially withdrawn, he was noted to be able to work full-time throughout that appeal period without any difficulties, and he had other social relationship with his family during that time period. Additionally, the Board reflects that the evidence of record does not demonstrate any suicidal ideations until such is noted by history in the December 7, 2015 DBQ from Dr. V.B. Likewise, the evidence of record does not demonstrate any finding of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively until the December 7, 2015 DBQ, although the Veteran is noted to have daily panic attacks 2-3 times a day that were well-controlled by medication. Although the Veteran appears to have frequent “panic attacks,” such are not shown during the period prior to December 7, 2015, to significantly impact most areas of his life. Furthermore, the Board reflects that although the Veteran was noted to have some irrelevant speech during the period prior to December 7, 2015, his speech is generally noted to be goal-directed, logical, and clear during that appeal period. Although his speech was occasionally irrelevant and circumstantial, the Board notes that the Veteran was otherwise able to function without deficiencies in most areas of his life during that period. Moreover, although some past episodes of violence were noted during the January 2015 VA examination report, such reports were in the remote past. Significantly the Board reflects that the Veteran was not noted during the appeal period to have any impaired impulse control with episodes of violence. The Board cannot find that the Veteran’s disability picture during the period prior to December 7, 2015, is demonstrable of impaired impulse control that causes impairment in most areas of his life. Finally, there is no evidence during that period of any obsessional rituals which interfere with routine activities; spatial disorientation; neglect of personal appearance and hygiene; or, difficulty in adapting to stressful circumstances. Overall, after weighing the evidence of record and the findings and conclusions of Dr. V.B. and the VA examiners for the period prior to December 7, 2015, the Board is not able to find that the disability picture presented during that appeal period is more closely approximate to social and occupational impairment with deficiencies in most areas of his life; rather, it appears that the psychiatric disability picture of the Veteran—who was working without significant problems until September 2015 when he took an early retirement package—is more closely approximate to that social and occupational impairment with reduced reliability and productivity. Finally, after review of the evidence from October 11, 2005 through October 10, 2006, the Board is unable to identify any factually ascertainable increase in symptomatology during that time period that demonstrates a worsening of the Veteran’s psychiatric condition. Rather, the first factually ascertainable evidence of an increase in symptomatology in this case is on October 11, 2006—the date of receipt of the Veteran’s claim for increased evaluation for his psychiatric disability—in which the Veteran indicated that his psychiatric disability had “worsened.” Turning to whether the Veteran warrants a 100 percent evaluation at any time during the appeal period, the Board notes that throughout the appeal period there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or hurting self or others; disorientation to time or place; or, significant memory loss such as the names of close relatives, his occupation, or his name. Although the Board acknowledges finding of Dr. V.B. that the Veteran had intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, in the December 7, 2015 DBQ, this is her only finding of such at any time during the record. The Board notes that prior to that time, the Veteran was shown to have good personal hygiene and to be neatly groomed; likewise, he was shown to be able to work without problems and he was not shown to have any problems performing his activities of daily living. Furthermore, in the May 2016 VA treatment record, the Veteran had adequate hygiene and is not otherwise noted to have any problems with his activities of daily living. The Board finds that this evidence is more probative than Dr. V.B.’s single finding of intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, during the December 7, 2015 DBQ examination. Consequently, the Board cannot find that there is evidence of any intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, throughout the appeal period in this case. Finally, after review of the Veteran’s entire disability picture, particularly that noted in the Veteran’s December 7, 2015 DBQ examination, the Board cannot find that the evidence of record demonstrates total social and occupational impairment at any time during the appeal period. Generally, throughout the appeal period, the Veteran is shown to be working full time, until taking early retirement in September 2015 due to physical and emotional conditions. Likewise, after that date, the Veteran is not otherwise shown to be unable be totally socially impaired, as he lived with his two youngest children as noted during that examination. Finally, and most significantly, at no time has any medical professional found that the Veteran was totally occupationally and socially impaired due to his psychiatric disability; even Dr. V.B. found that the Veteran’s impairment was in most areas and not total in the December 7, 2015 DBQ examination. The Board finds that such evidence is the most probative evidence in this case. Accordingly, for the appeal period prior to December 7, 2015, the Board finds that a 50 percent evaluation, but no higher, is warranted beginning October 11, 2006, but no earlier, based on the evidence of record at this time; to that extent the appeal is granted at this time, and in all other aspects, the Veteran’s claim for increased evaluation for his psychiatric disability is denied. See 38 C.F.R. §§ 3.400(o), 4.7, 4.130, Diagnostic Code 9400. Entitlement to TDIU Prior to December 7, 2015 VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a “schedular TDIU,” is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an “extraschedular TDIU,” is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must be submitted to VA’s Director, Compensation Service in the first instance. 38 C.F.R. § 4.16(b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall 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). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Id. 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. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. As an initial matter, the Board reflects that the Veteran is only service connected for his psychiatric disability during the appeal period. Moreover, in an April 2018 rating decision, TDIU was awarded beginning December 7, 2015. Such date corresponds to the date on which the Veteran is rated as 70 percent disabling for his service-connected psychiatric disability, as discussed above. Likewise, as discussed above, the Veteran is rated as 50 percent disabling for the period prior to December 7, 2015; therefore, the Veteran does not meet the criteria laid out in 38 C.F.R. § 4.16(a) for that period. Nevertheless, the Board has considered whether to refer this case to the Director of Compensation for an appropriate opinion, as required under 38 C.F.R. § 4.16(b). The Board, however, finds that such is not necessary, as the Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment at any time during the appeal period. In this case, as noted above, the Veteran is shown to have been employed full-time as a supervisor with a company he had worked for 20 years throughout the appeal period, until taking early retirement from that company in September 2015. Accordingly, the Board finds that prior to the date on which the Veteran retired in September 2015, the evidence clearly demonstrates that the Veteran’s psychiatric disability did not preclude him from substantially gainful employment, as he was clearly able to work full time until that time. Additionally, the Board reflects that the Veteran was not fired from that job due to his psychiatric disability, nor was he otherwise forced to leave that job due to his psychiatric disability. Rather, it appears that the Veteran voluntarily took early retirement to leave his full-time supervisory position in September 2015. The Board further notes that Dr. V.B. indicated in the December 7, 2015 DBQ examination that the Veteran’s reasons for leaving employment at that time were due to both emotional and physical issues. As the Veteran is only shown to have service connection for a psychiatric disability, the Board finds that the evidence does not demonstrate in this case that prior to December 7, 2015, the Veteran’s psychiatric disability—alone—precluded him from obtaining and maintaining substantially gainful employment. Consequently, the evidence does not demonstrate that the Veteran was precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected psychiatric disability at any time during the appeal period prior to December 7, 2015. Accordingly, entitlement to TDIU for the period prior to December 7, 2015, must be denied in this case based on the evidence of record at this time. See 38 C.F.R. § 4.16. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel