Citation Nr: 21074394 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-03 849 DATE: December 15, 2021 ORDER Entitlement to an initial rating of 70 percent disabling, but no higher, for anxiety disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's anxiety disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation, near-continuous depression affecting the ability to function effectively, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective work and social relationships. He has not manifested symptoms which result in total occupational and social impairment. 2. For the entire period on appeal, the Veteran has been rated at 70 percent for his anxiety disorder, as a result of the below decision. 3. The evidence of record does not show that the Veteran's service-connected anxiety disorder has prevented him from securing or maintaining gainful employment consistent with his education and occupational experience. 4. The Veteran's current employment does not constitute employment in a protected environment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent disabling, but no higher, for anxiety disorder have been met. 38 U.S.C. § 1155, 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9413. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from October 2003 to May 2006. He was awarded a Combat Action Ribbon. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2016 initial rating decision by a Department of Veterans Affairs (VA) regional office (RO), which granted service connection for the Veteran's anxiety disorder with an evaluation of 50 percent disabling, and denied entitlement to individual unemployability. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2021. A transcript of the hearing has been associated with the record. 1. Entitlement to an initial rating of 70 percent disabling, but no higher, for anxiety disorder is granted. The Veteran contends his service-connected anxiety disorder warrants an initial rating higher than 50 percent. Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 283 (1991). Although the Veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of the 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. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation 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, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Anxiety Disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9413 (the General Rating Formula for Mental Disorders), which provides for a 50 percent rating when the evidence shows 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-term 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, Diagnostic Code 9413. A 70 percent rating is warranted when the evidence shows occupational and social impairment, which deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to a manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms listed are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis In the present case, the Veteran's service-connected anxiety disorder was assigned a 50 percent disability rating under the Rating Schedule by the October 2016 rating decision. The Veteran contends that his anxiety disorder warrants an initial rating higher than 50 percent. At the July 2021 hearing, the Veteran testified that he worked on a part-time basis installing tile and his job did not involve interacting with people. He described a good relationship with his boss, who mostly left him alone to get the work done. He testified he had no relationships outside of his family and avoided people. He mentioned a recent road rage incident in which he nearly had an altercation with another motorist. He endorsed experiencing suicidal ideations. He noted that his mental health treatment had been on hold or inconsistent due to the COVID-19 pandemic, without regular treatment since late 2019. He stated he would soon be resuming treatment. The Veteran's wife testified that he frequently displays paranoid thoughts and behaviors, in which he believes that people are looking at him, talking negatively about him, and even that his food or drink have been poisoned. She explained that he does not attend his daughter's softball games, does not visit family members, and does not go on vacation due to his mental health symptoms of avoidance and paranoia. She described him as irritable and noted that the children often need to "walk on eggshells" around him. The Veteran was afforded a VA mental health examination in September 2016. The examiner diagnosed the Veteran with unspecified anxiety disorder and found that he had occupational and social 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. The Veteran reported feeling suspicious and believing that people were talking about him and becoming easily irritated and frustrated, which impacted his home environment. The examiner annotated symptoms including depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work relationships. The Veteran also submitted a VA Review PTSD Disability Benefits Questionnaire, which had been completed in August 2016 by a private provider who was a licensed professional counselor and PhD. The provider opined the Veteran had occupational and social impairment with deficiencies in most areas. He noted the Veteran avoided social situations and did not maintain friendships. He noted the Veteran had stopped taking medication for his anxiety. Noted symptoms included anxiety, depressed mood, suspiciousness, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, and impaired impulse control. The Veteran's paranoia was also noted as a significant symptom that caused difficulty for him in maintaining employment. The Board acknowledges that the provider utilized the criteria in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) rather than the Fifth Edition of that treatise (DSM-V), which is the standard for all claims certified to the Board on or after August 4, 2014. See 80 Fed. Reg. 14308, 14309 (March 19, 2015). Global assessment of functioning (GAF) scores were removed from the DSM-V. However, while GAF scores are not appropriate for use in this case, the psychiatric symptoms found by the private provider can be considered for rating purposes. VA treatment records reflect heightened levels of anxiety interfering with his life functioning. For example, an October 2019 note reflects the Veteran had missed "orientation" appointments for a mental health treatment group, and had reportedly refused to attend because he did not want to talk about himself in front of others. An August 2019 medical note states a consult will be placed for marital therapy due to the severity of the Veteran's anxiety affecting his marriage. It further states that the Veteran is "very limited with outside activities." A psychiatric treatment note in August 2019 reflects that the Veteran reported paranoid thoughts and depressive symptoms including trouble with concentration, decreased energy, and lack of interest. He reported he "quit" his fluoxetine (antidepressant) medication. The Veteran denied suicidal ideation during the appointment, but on an intake questionnaire that same day he indicated that over the last two weeks, there were "several days" in which he had thoughts that he would be better off dead or of hurting himself in some way. The Veteran was started on quetiapine 25 mg for his paranoia and the provider encouraged him to resume taking his fluoxetine 40 mg. His GAD-7 score was 11, with the provider noting that a score between 10-14 indicated a condition that should be carefully evaluated, whereas a score of 15-21 would require active significant treatment for anxiety. A March 2019 VA treatment record similarly reflects paranoid and delusional symptoms as well as indication of suicidal ideations. The Veteran indicated "several days" in the past two weeks in which he had thoughts that he would be better off dead or of hurting himself in some way, though after further evaluation at the appointment, his suicide risk was determined to be low. At that appointment, the Veteran reported his fluoxetine was helping his mood but continued to report intrusive thoughts and paranoid ideations. He reported having been out of town recently due to his work in construction. A January 2019 treatment record indicated the Veteran had last been seen in March 2018 and had decided to reestablish treatment. The Veteran described reluctance to be around people and actively avoiding social interactions. He described paranoid thoughts including fearing that others may be trying to hurt him, including adulterating his food or drinks. He indicated he visited his parents and enjoyed talking with his father. He stated he did not socialize with anyone else. He described significant anxiety with respect to taking medications. An August 2018 VA treatment note reflects that the Veteran's wife called his provider noting that the Veteran was convinced he was going to have an allergic reaction to his cholesterol medication and had taken a quarter of a pill the night before "and put himself into a panic attack." A March 2018 treatment note reflects the Veteran reported his mood was "pretty good" and he had a good initial response to fluoxetine medication, but quit taking it when he was out of town for two weeks for work. No suicidal ideation was endorsed. In October 2017, he reported his mood was "pretty good" after recently starting fluoxetine, but nevertheless endorsed multiple symptoms of depression. A suicide risk assessment conducted in September 2017 reflects the Veteran reported he was not suicidal and had not had any suicidal thoughts in the past six months. The Veteran reported he lost his temper easily with his spouse, but indicated no significant problems with marriage, family, or work. The provider determined the Veteran may have "non-suicidal morbid ideations," and "possible fleeting suicidal ideations with no plan or intent." He was evaluated to be low risk. In June 2017 he denied suicidal ideation or thoughts of self-harm. In February 2017, the Veteran's wife reported he stated he wanted to get off medications and not take anything, but that she felt he needed to be on medication. At an initial mental health encounter in December 2016, he was noted to be moderately depressed. He denied suicidal ideations and thoughts of self-harm. After conducting a holistic analysis and review of the Veteran's symptoms, and affording the Veteran the benefit of the doubt, the Board finds the symptoms more nearly approximate the criteria for the next higher rating of 70 percent. In assigning this rating, the Board finds that while many, though not all, of the rating criteria for 70 percent are satisfied, an increased rating for a psychiatric disorder does not require that all deficiencies listed in the rating criteria are met. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board notes that the Veteran has at times expressed suicidal ideation, which, on its own, may cause occupational and social impairment with deficiencies in most areas, even absent evidence of intent or other indicators of suicidality. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The evidence reflects that the Veteran's mental health treatment has been inconsistent. He has routinely been reluctant to take prescribed medication and has at times refused medications, ceased taking medications, or failed to follow up with recommended treatment. His overall motivation for mental health treatment appears to be low. His mental health treatment notes reflect anxiety and depression that affect his ability to function effectively and also reflect ongoing reports of paranoid ideations. Although paranoid ideations are not specifically listed in the criteria for a 70 percent rating, that list is not exhaustive. See Mauerhan, 16 Vet. App. 436. The Board finds the Veteran's paranoia goes well beyond the "suspiciousness" listed in the criteria for a 30 percent rating and is demonstrative of a much greater level of impairment. In summary, the overall evidence of record reflects a disability picture from his mental health condition causing occupational and social impairment with deficiencies in most areas, and accordingly, the Board grants an increased initial evaluation of 70 percent. The Board does not, however, find that a 100 percent evaluation is warranted at any time during the appeal period. The evidence viewed from a longitudinal perspective persuasively shows that the Veteran's disability picture did not more nearly approximate the criteria for a 100 percent rating. The Veteran clearly has significant, though not total, social impairment. He has reported being isolated and avoiding people, though he maintains some effective relationships with close family members. He has not shown severe memory loss, such as memory loss for names of close relatives, his own occupation, or his own name. The Veteran has never been found to be in persistent danger of hurting himself or others and has not shown any grossly inappropriate behavior. He has endorsed suicidal ideations, but they were not accompanied by any plan. His medical treatment notes have generally noted him to be cooperative, alert, oriented, and communicative. The evidence shows that his irritability and isolation have caused problems in occupational and social functioning, but does not show total occupational and social impairment. He has maintained employment. While the evidence indicates he suffers from paranoid thinking, he has not shown persistent delusions or hallucinations and has not been disoriented to time or place. The medical records reflect that the Veteran consistently performs activities of daily living and maintains his personal hygiene. While the Veteran has demonstrated substantial negative symptoms associated with his anxiety disorder, total occupational and social impairment is not reflected in the Veteran's treatment records or his own statements or testimony. The overall evidence is not reflective of total occupational and social impairment, and a 100 percent rating cannot be assigned. In sum, the Board finds that the Veteran's level of occupational and social impairment due to his anxiety disorder has been most consistent with a 70 percent disability rating, but no higher, for the period on appeal. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. The Veteran contends he is entitled to a total disability rating based on individual unemployability. The Veteran contends his current employment working in construction and laying tile flooring, which he has held since February 2017, constitutes employment in a protected or sheltered environment. Legal Criteria A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. at 452 (2009). A veteran need not show complete unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). TDIU will be awarded when VA determines that a veteran cannot secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims (Court) noted that "substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Marginal employment is not considered substantially gainful, meaning that veterans who are engaged in marginal employment may be awarded TDIU even though they are working. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16(a). The regulation further provides that 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 does exceed the poverty threshold. Id. Accordingly, a veteran may be granted TDIU despite being employed and having an income in excess of the poverty line if his employment is in a protected environment. Cantrell v. Shulkin, 28 Vet. App. 382, 389-91 (2017). The Board recognizes that VA has not defined the term "protected environment" in the regulations governing TDIU claims beyond the examples given of family business or sheltered workshop. Id. However, in Arline v. McDonough, No. 18-0765 (Vet. App. July 1, 2021), the VA recently asked the Court to define "employment in a protected environment" as follows: "employment in a non-competitive workplace separated from workplaces in the open labor market and in which hiring and compensation decisions are motivated by a benevolent attitude toward the employee." Although the Court ultimately declined to define the term at all, the Board will utilize this proposed definition. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis By this decision, the Veteran's anxiety disorder is rated at 70 percent disabling. Therefore, for the entire period on appeal, the Veteran meets the threshold criteria for entitlement to a TDIU, as he has one disability rated at least at 60 percent. Nevertheless, the Board finds that the Veteran has not shown his disability prevents him from securing or maintaining gainful employment. The Board further finds that his current employment does not constitute employment in a protected environment. The evidence reflects that the Veteran has a high school education and has worked in a variety of manual labor jobs, including construction work, factory work, and warehouse shipping and receiving. The Veteran currently works and has held employment in his current position since February 2017. The Board notes that the Veteran's income exceeds the poverty threshold for one person. The Veteran testified at the hearing that he made $1,400 per month working 20-30 hours per week, which would equate to $16,800 per yearthus exceeding the poverty threshold of $12,880 for 2021 (and necessarily exceeding the lower poverty thresholds of the preceding years as well). The Veteran's previous employer submitted VA Form 21-4192 which showed the Veteran earned nearly $11,000 during his four-month employment from July to November 2016, and the form submitted by another previous employer showed that he earned nearly $6,000 over a four-month employment from April to July 2016. Furthermore, the Veteran and his attorney have not argued that his income has fallen below the monetary standard used to define marginal employment, but rather have focused instead on the alternative, "facts-found" basis, i.e., that the Veteran's employment should be considered as employment in a protected or sheltered environment, and therefore the Veteran should still be considered unemployable. The Board disagrees, finding that the Veteran's employment does not qualify as "employment in a protected environment" as that term is used in 4.16(a), for the reasons discussed below. The Veteran testified that he is currently employed by a tile company and frequently works in new home construction. He testified he does tile work and backsplashes, as well as tearing out old flooring. His boss, the owner of the company, is an older gentleman in his sixties, and the Veteran is the only employee. He described the division of labor in which the boss handled most of the administrative matters in arranging the work and the Veteran completed most of the labor. He described having a good relationship with his boss, who mostly left him alone and trusted him to independently complete his work. The Veteran appears to be competent and effective at his job. He testified that his job situation was unique and he did not believe he could do the same or similar type of work with anyone else. The Board acknowledges the Veteran has found himself what appears to be an ideal employment situation for his temperament. He is able to work alone. Perhaps in contrast to his previous jobs, few interpersonal interactions are involved. Nevertheless, there is no evidence that the Veteran's workplace is a non-competitive workplace separated from the open labor market, nor is there any evidence that hiring and compensation decisions made by the Veteran's boss are motivated by a benevolent attitude. Rather, the Veteran seems to have advantageously found a job situation that suits his preferences, skills, and abilities, with a boss who trusts him and his work and who enables him to complete his work in relative solitude which is also the nature of the work itself. To the extent that the Veteran works part-time, rather than full-time, this does not change the Board's analysis. The Veteran's schedule appears to be based on the needs of his employer and the amount of available work. Moreover, employment is not necessarily marginal simply because the Veteran does not have a full-time work schedule. See Faust v. West, 13 Vet. App. 342, 250 (2000) (holding that where the veteran was found to have a substantially gainful occupation with income exceeding the poverty level, the number of hours or days that a veteran actually worked was irrelevant). And, as previously noted, some medical records reflect that the Veteran has at times traveled out of town for his job assignments, which would also indicate the availability of more than part-time work as well as the Veteran's ability to manage it. Although the Veteran emphasized the unique aspect of his current job that has enabled him to remain gainfully employed for over four years, the Board again reiterates that while this is certainly an advantageous situation for the Veteran, his belief that he would be unable to do a similar job for anyone else does not warrant a finding that he is otherwise unemployable if not for this unique employment setup. The Board does not agree that given his skills and experience he would be unable to secure or maintain similar employment that would enable him to quietly do his work with little interaction with other people. Nor does his satisfaction with his employment situation transform the employment relationship into a benevolent one. In summary, the preponderance of the evidence does not support a finding that the Veteran's current job constitutes marginal employment due to being a protected environment. As for the time comprising that portion of the period on appeal which precedes the Veteran's current employment, the Board finds that he was also capable of securing and maintaining gainful employment during that time, and did so. Indeed, the Veteran submitted his 2016 income records reflecting gainful employment and which show that he made above the poverty line. The submissions of his former employers reporting his income also support such a finding. While the Veteran changed jobs frequently, experienced interpersonal problems at work due to his mental health symptoms including paranoid ideations, and appears to have spent a few months unemployed between November 2016 and February 2017, the evidence does not reflect that he was incapable of securing or maintaining gainful employment. While the Veteran clearly experienced occupational impairment due to his mental health symptoms, and may have disliked some of his jobs, the evidence shows that he was qualified and mentally capable of working jobs commensurate with his experience and skill set. Additionally, neither the September 2016 VA examiner nor the August 2016 private examiner concluded the Veteran was unemployable. The Board further notes that by this decision, the Veteran is awarded a 70 percent disability rating for his anxiety disorder, which in and of itself acknowledges the Veteran's occupational impairments, including the difficulty the Veteran has had in maintaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (a high rating itself is recognition that the impairment makes it difficult to obtain or maintain employment). However, the evidence simply does not support a finding that the Veteran is mentally incapable of employment due to his mental health disability. In summary, the record does not show or suggest that the Veteran by virtue of his service-connected anxiety disorder was rendered incapable of securing or maintaining substantially gainful employment consistent with his education and experience. The Board further finds that the Veteran's current employment, which he has maintained for over four years, does not constitute employment in a sheltered or protected environment. Accordingly, the Board finds based on the evidence that a TDIU is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.