Citation Nr: 21006406 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-18 163 DATE: February 4, 2021 ORDER Entitlement to service connection for a skin disorder, including skin cancer, as due to herbicide exposure, is denied. Entitlement to service connection for alcohol abuse, as secondary to service-connected anxiety disorder, is granted. Entitlement to a rating of 70 percent, but no higher, for the service-connected acquired psychiatric disorder, to include anxiety disorder is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is granted. FINDINGS OF FACT 1. The Veteran’s skin disorder is not related to service. 2. Affording the Veteran all reasonable doubt, the alcohol abuse is related to the service-connected anxiety disability. 3. The Veteran’s acquired psychiatric disability has most closely approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood with corresponding symptomatology. 4. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for alcohol abuse disorder are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 3. The criteria for a rating of 70 percent, but no higher, for an acquired psychiatric disability, to include anxiety disorder, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. 4. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2018. The claim was remanded for additional development to include VA opinions and examinations. The requested opinions and examinations were added to the file. The Board finds that the RO substantially complied with the December 2018 Board remand directive as it relates to the migraines and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a skin disorder, including skin cancer, as due to herbicide exposure The Veteran claims his skin disorder is related to in-service Agent Orange exposure. He has not articulated a specific incident related to the skin disorder. For the reasons discussed below, the Board finds that a nexus between the claimed disability and active service has not been demonstrated, and that service connection is not warranted. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a skin disorder. A June 1970 separation examination revealed normal clinical findings for the skin. Post service, in April 1998, the Veteran reported a non-healing skin lesion in the back of his neck since November 1997, as well as itching on his arms, trunk and back for the past 10 years. The examiner noted widely-scattered finely-scaly patches. He stated that the itching may be due to tinea corporis. A July 1998 Agent Orange Registry Examination showed that the Veteran reported experiencing itching skin on his back, arms and legs, and spots that peel and flake, since his return from Vietnam. There were dry, scaly patches on sun-exposed areas. The examiner diagnosed seborrheic keratoses. In January 2012 treatment notes showed that the Veteran complained of white, scaly papules on his hands, arms and back for several years; itchy skin, worse on his arms and face, but spreading down his back, stomach and legs; and a growth on his left third finger that had been present for three to four years. The examiner noted xerosis, ill-defined erythema with scale worse in a photo-distribution, and 1cm, hyperkeratotic papule on the left third finger. The assessment was asteatotic eczema vs. photo-exacerbated atopic dermatitis. A biopsy revealed a differential diagnosis of hypertrophic actinic keratosis and squamous cell carcinoma of the left third finger. In January 2012 VA treatment records indicated a biopsy revealed skin cancer or squamous cell carcinoma. An October 2019 VA examination opinion report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with actinic keratosis and seborrheic dermatitis. He reported an unknown onset for both skin conditions. The examiner opined the skin condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was reasoned, Actinic keratosis (AKs) are more common with individuals with fair skin. Ultraviolet radiation (sun exposure) increases risk, Squamous cell incidence increases with age and skin exposure to sun. Seborrheic dermatitis often as in dandruff is benign and can occur at scalp, face and trunk. May come and go for decades and tends to improve during summer months and worsens with stress and cold and dry winter months. Furthermore, the examiner noted, “herbicide exposure has not been linked to these skin conditions. The Veteran reported he was red-headed and fair skinned [with] a long history of outdoor jobs after active duty, which more likely than not are the cause of his skin conditions.” The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. Initially, the Board notes military service personnel records indicated from March 1968 to March 1969 the Veteran served in Vietnam, therefore, exposure to Agent Orange is conceded. Although the Veteran has a diagnosis of squamous cell carcinoma, actinic keratosis, and seborrheic dermatitis, theses diagnoses are not among the diseases set forth in 38 C.F.R. § 3.309(e). Therefore, a presumption based on in-service herbicide agent exposure is therefore not warranted. However, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, the Board finds that the October 2019 VA opinion, discussed above, is the most probative evidence of record. The VA opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale. The VA examiner interviewed and examined the Veteran, was informed of the pertinent evidence, reviewed the Veteran’s claims file, and fully articulated the opinion in the report. There are no contrary competent medical opinions of record, and the VA examiner’s opinion is supported by the post-service treatment records, which suggest that the Veteran’s skin disorders are likely related to factors other than service and agent orange exposure. Specifically, the July 1998 Agent Orange Registry Examination revealed dry, scaly patches on sun-exposed areas. This evidence supports the October 2019 VA examiners opinion that a long history of outdoor jobs after active duty are more likely the cause of his skin disorders. Additionally, the Veteran was not treated for a skin disorder until 1997, 27 years post service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Accordingly, service connection for a skin disorder, to include as related to agent orange exposure is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for alcohol abuse, as secondary to service-connected anxiety disorder The Veteran claims his alcohol abuse is related to service. Specifically, the claim has been developed as entitlement to service connection for alcohol abuse as secondary to the service-connected anxiety disorder. The Veteran has not articulated a specific incident related to the alcohol abuse. However, the evidence is in relative equipoise and service connection is warranted. STRs do not reflect any symptoms, diagnosis, or treatment for alcohol abuse. In August 2016, the Veteran’s wife, V.W. submitted a statement. She indicated the Veteran has had anxiety since he returned from service and has been self-medicating with alcohol. In October 2016, the Veteran submitted a private examination from H.P., Ph.D. He was diagnosed with unspecified anxiety and alcohol use disorder. He reported drinking 3 glasses of whiskey daily to deal with his anxiety. An October 2019 VA examination opinion report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with generalized anxiety disorder. The examiner opined the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. It was reasoned, His anxiety symptoms started after he returned from Vietnam and has been an issue for many years. His drinking of alcohol is currently at a level that does not meet the criteria for Alcohol Use Disorder. It does not appear that his anxiety symptoms are caused or is the result of his alcohol usage. In November 2020 the Veteran submitted articles entitled, “Post-traumatic stress disorder, depression and suicidality in inpatients with substance use disorders” and “The Civilian Labor Market Experiences of Vietnam-Era Veterans: The Influence of Psychiatric Disorders.” The first article discusses the prevalence between substance use disorders and PTSD. The second article discusses the effect of PTSD on male Veteran as it relates to wages, hours worked, and employment probabilities. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran’s alcohol abuse disorder is related to the service-connected anxiety. Although the October 2019 VA opinion found the Veteran did not meet the criteria for an alcohol abuse diagnosis, the October 2016 private examination diagnosed the Veteran with alcohol abuse disorder based on the DSM 5 criteria. As such, the Board finds the Veteran does have a current disability. The Board finds the alcohol abuse disorder is related to the service- connected anxiety. The August 2016 statement from the Veteran’s wife indicated the Veteran deals with his anxiety by self-medicating with alcohol. Furthermore, during the October 2016 private examination the Veteran admitted to self-medicating with alcohol and drinking 3 glasses of whiskey a day to cope. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. As the alcohol abuse disorder is attributable to the anxiety, there is no appreciable difference between the alcohol abuse diagnosis and the anxiety diagnosis. Indeed, there is no specific rating code for alcohol abuse under the applicable regulations. Therefore, under the circumstances of this case and upon resolution of reasonable doubt in the Veteran’s favor, service connection for alcohol abuse is granted. Increased Rating 3. Entitlement to a rating in excess of 50 percent for the service-connected psychiatric disability The Veteran asserts that his service-connected acquired psychiatric disorder warrants an evaluation in excess of 50 percent. In November 2020, the Veteran’s attorney submitted correspondence arguing the Veteran is entitled to an increased rating due to severe symptoms such as difficulty in establishing and maintaining effective work and social relationships and adapting to stressful circumstances. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A December 2012 rating decision granted service connection for an anxiety disorder evaluated at 50 percent, effective February 2012. The Veteran’s anxiety disorder is rated under DC 9413 which specifically addresses unspecified anxiety disorders; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under the general rating formula, 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 (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The Veteran’s current 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A total schedular rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A February 2015 VA examination opinion report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran was diagnosed with unspecified anxiety disorder. The examiner found the Veteran’s occupational and social impairment consisted of 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 living with his wife and grandson. He works part-time for a farmer. The symptoms that actively applied to the Veteran were anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. In March 2015, VA treatment records indicated the Veteran could independently complete all activities of daily living. In an August 2015 statement the Veteran’s employer, B.C., indicated the Veteran has worked for many years on her farm although he does not have any specific job responsibilities. The employer is aware of his mental illness and accommodates him significantly. There are no disciplinary measures or consequences for his absences. The employer believes the Veteran cannot work a consistent work schedule, so the Veteran sets his schedule. This freedom to work in any way he can at any schedule he chooses is a benefit not afforded to any other employee. In July 2016 VA treatment records a screening revealed the Veteran was negative for depression. When asked if he had little interest or pleasure in doing things or feeling down, depressed, or hopeless, he responded “not at all.” In August 2016, the Veteran’s wife, V.W. submitted a statement. She indicated the Veteran has had anxiety since he returned from service and uses alcohol as self-medication. She alleged the Veteran does not care about his appearance or hygiene and will go 3 or more days without bathing. In October 2016, the Veteran submitted a private examination from H.P., Ph.D. He was diagnosed with unspecified anxiety and alcohol use disorder. The psychologist found the Veteran’s occupational and social impairment consisted of deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported he lives with his wife and two grandchildren. He keeps his struggles to himself, not wanting to burden others and he is socially isolated. He works 10 to 15 hours a week on a farm. He drinks 3 glasses of whiskey daily to deal with his anxiety. The symptoms that actively applied to the Veteran were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittently inability to perform activities of daily living. His attention was normal, and concentration was variable. He complained of increased trouble with short-term memory. His speech flow was normal and thought content was appropriate. Organization of thought was goal oriented and he did not report and overt hallucinations. His judgment was average. In October 2017 VA treatment records a screening revealed the Veteran was negative for depression. When asked if he had little interest or pleasure in doing things or feeling down, depressed, or hopeless, he responded “not at all.” In April 2018 VA treatment records the Veteran reported he’s not struggling with any mental health issues at this point. He denied anxiety, depression, or effects of trauma. In December 2018, VA treatment records indicated the Veteran is not having problems with activities of daily living as the Veteran is dressing bathing, grooming, and feeding himself. In August 2019 VA treatment records, the Veteran denied nervousness, anxiety, and depression. An October 2019 VA examination opinion report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran was diagnosed with generalized anxiety disorder. The examiner found the Veteran’s occupational and social impairment consisted of 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 he had a few close friends growing up and has maintained these relationships over the years. He has a good relationship with his wife, children and grandchildren. He enjoys hunting, fishing and dancing with his wife at a civic club (Eagles) that he has been a member of for the last 5 years. He has been ranching for the last 20 years and continues to work part time. The symptoms that actively applied to the Veteran were anxiety, panic attacks that occur weekly or less often, mild memory loss, and flattened affect. He was appropriately dressed and groomed, friendly and easily engaged in conversation. His thinking was logical, organized and goal directed. His affect was appropriate and well-modulated. His speech was normal. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the evidence of record is in equipoise concerning the application of a 70 percent disability rating for this appeal period, and thereby affords the benefit of the doubt to the Veteran. A 70 percent rating is warranted for the appeal period. A rating in excess of 70 percent is not warranted for the reasons discussed below. In this case the Board finds that the October 2016 private psychiatric examination report is the most probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and a supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Its supported by the February 2015 VA examination which noted the Veteran suffers from symptoms such as difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Also, the August 2016 statement from the Veteran’s wife where she alleged the Veteran does not care about his appearance or hygiene and will go 3 or more days without bathing. Therefore, the Board finds that the October 2016 opinion provides competent, credible, and probative evidence which shows that the current psychiatric disability warrants a 70 percent disability rating. The Board acknowledges the February 2015 and October 2019 VA examinations indicated the Veteran’s level of occupational and social impairment consisted of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks which is indicative of a 30 percent rating. However, the opinions are less probative as they are not supported by the collective evidence of record. First addressing the February 2015 VA examination, despite the opinion, the examiner noted the Veteran suffers from difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances which is indicative of a 70 percent rating. As it relates to the October 2019 findings, the Board notes the evidence demonstrates a greater impairment in the occupational and social impairment. Notably the August 2015 statement from the Veteran’s employer, B.C., demonstrates the limitations on the Veteran’s functional impact and accommodates him accordingly. The record does not demonstrate 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In March 2015 VA treatment records, it was noted the Veteran could perform all activities of daily living independently. The October 2016 private examination indicated the Veteran’s attention was normal, and concentration was variable. His speech flow was normal and thought content was appropriate. Organization of thought was goal oriented and he did not report and overt hallucinations. His judgment was average. The December 2018 VA treatment records indicated the Veteran is not having problems with activities of daily living as the Veteran is dressing bathing, grooming, and feeding himself. Furthermore, the October 2019 VA examiner noted the Veteran was appropriately dressed and groomed and his thinking was logical, organized and goal directed. His affect was appropriate and well-modulated. His speech was normal. Accordingly, a 70 percent rating, but no higher, is warranted. 4. Entitlement to a TDIU The Veteran contends a TDIU is warranted. For the reasons discussed below, the Board agrees. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. Ray v. Wilkie, No. 17-0781, March 14, 2019. 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. Id. In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. On review of all evidence, the Board finds that entitlement to a TDIU is warranted. In October 2020 the Veteran submitted a VA 21-8940 for (application for TDIU); The Veteran’s education consists of two years of high school and his training consist of small engine repair and heavy equipment. He indicated from 1995 till present he has maintained a job at a ranch. The most he has earned in one year is $16,055. In the remarks section he reported the last time he has worked full time was for a portion of 2015. He is only capable of working part time at 30 hours or less a week. Also, the record contains educational and vocational history from the Social Security Administration (SSA). The SSA records indicated the Veteran has a disability onset of October 2007 due to organic mental disorders. Specifically, Dementia. In December 2008 SSA records, the Veteran reported he has been self-employed for years in the area of construction, roofing, remodeling homes, and laying concrete. Specifically, he reported from January 1993 to October 2008 he worked on a ranch for 12 to 50 hours a week at a rate of $10 dollars an hour. The December 2008 SSA disability report indicated the Veteran’s employment history included a full time work as a welder from 1994 to 1994 making $20 an hour; roofing, remodeling, and odd jobs from 1993 to 1996 making $2700 a year; bingo manager from 2001 to 2001 making $200 a week; laborer from 2002 to 2002 making $1,015 a year; and a farm handyman from 2004 to present making $358 a month. The highest grade he has completed is the 9th grade and he has vocational school training in heavy equipment operator. The Board notes the Veteran is service-connected for a psychiatric disability only, rated at 50 percent effective February 10, 2012. The total combined disability rating is 50 percent effective February 10, 2012. However, in light of the Boards actions herein, the psychiatric disability is now rated as 70 percent, effective October 21, 2014, the date of the Veteran’s application for an increased rating claim. Therefore, the Veteran has a total combined disability rating of 70 percent effective October 21, 2014. As the Veteran has a single disability evaluated at 60 percent, specifically 70 percent, schedular TDIU is met. 38 C.F.R. § 4.16(a). Entitlement to TDIU turns on the determination as to whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of the service-connected disability. The relevant evidence includes an August 2015 statement from the Veteran’s employer, B.C. The employer indicated the Veteran has worked for many years on her farm although he does not have any specific job responsibilities. The employer is aware of his mental illness and accommodates him significantly. There are no disciplinary measures or consequences for his absences. The employer believes the Veteran cannot work a consistent work schedule, so the Veteran sets his schedule. This freedom to work in any way he can at any schedule he chooses is a benefit not afforded to any other employee. In October 2016 the Veteran submitted a private report from H.P., Ph.D. The psychologist noted the Veteran struggles sustaining the stress from a competitive work environment due to his anxiety and alcohol use disorders. The Veteran works 10 to 15 hours a week on a farm. The duties include cutting down trees and bulldozing and feeding the animals. The employer provides accommodations. The psychologist opined the Veteran’s anxiety and alcohol use disorder prevents him from maintaining substantially gainful full-time employment. During the October 2019 VA examination the Veteran reported he has been ranching for the last 20 years and continues to work part time. The examiner found the Veteran’s occupational and social impairment consisted of 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. In November 2020, the Veteran’s attorney submitted correspondence arguing the Veteran’s employment at the farm is marginal employment, citing to Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16(a). For purposes of this section, 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 fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. See 38 C.F.R. § 4.16(a). The evidence support this argument. The Veteran’s work on the farm is a protected environment, as demonstrated from the August 2015 statement from the Veteran’s employer, B.C. The employer is aware of his mental illness and accommodates him significantly. There are no disciplinary measures or consequences for his absences. Furthermore, the freedom to work in any way he can at any schedule he chooses is a benefit not afforded to any other employee. Notably, the October 2016 private psychologist opined the Veteran’s anxiety and alcohol use disorder prevents him from maintaining substantially gainful full-time employment, noting the Veteran struggles sustaining the stress from a competitive work environment due to his anxiety and alcohol use disorders. The Board acknowledges the fact that the Veteran has been deemed disabled by SSA since 2007 due to dementia. Based on the relevant evidence, the Board finds the Veteran is engaging in protected marginal employment at best. The income associated with his job at the farm is below the poverty line. Accordingly, the Board finds that a TDIU is warranted as the Veteran’s service-connected psychiatric disability has rendered him unable to obtain and maintain substantially gainful employment. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.