Citation Nr: 21023409 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-13 364 DATE: April 20, 2021 ORDER Prior to March 31, 2014, entitlement to an initial rating in excess of 50 percent disabling for anxiety disorder is denied. From March 31, 2014 to April 12, 2019, entitlement to an increased 70 percent rating, but no higher, for anxiety disorder is granted subject to controlling regulations applicable to the payment of monetary benefits is granted. Effective April 12, 2019, entitlement to a rating in excess of 70 percent disabling for anxiety disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 31, 2014, the Veteran’s anxiety disorder more nearly approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, hypervigilance, and chronic sleep impairment. The Veteran’s acquired psychiatric disorder was not manifested by suicidal ideation, obsessional rituals, speech intermittently illogical, obscure or irrelevant, impaired impulse control such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. 2. From March 31, 2014, the Veteran’s anxiety disorder more nearly approximated occupational and social impairment with deficiencies in most areas due to the following symptoms: suicidal ideation, depressed mood; anxiety; suspiciousness; hypervigilance; panic attacks more than once per week; chronic sleep impairment; flattened affect; impaired judgement; inability to establish and maintain effective relationships; and impaired impulse control. 3. Throughout the period on appeal, total social and occupational impairment has not been shown. CONCLUSIONS OF LAW 1. Prior to March 31, 2014, the criteria for a rating in excess of 50 percent disabling for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.130, Diagnostic Code (DC) 9413. 2. From March 31, 2014 to April 12, 2019, the criteria for a 70 percent disability rating, but no higher, for anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.130, DC 9413. 3. Effective April 12, 2019, the criteria for a rating in excess of 70 percent disabling for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.130, DC 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2009 to April 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is in the claims file. In April 2018, the Board remanded this case. During the pendency of the appeal, a May 2019 rating decision granted an increased rating for anxiety disorder of 50 percent, effective April 16, 2011, and 70 percent effective April 12, 2019. As those ratings are not the maximum allowable, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran has periodically asserted that he was unable to work, and/or that he could not worked in a normal environment, due to his service-connected anxiety disorder. The Veteran has also reported only being able to work part time with difficulty. See November 2013 NOD, September 2015 VA Medical Record, and April 2019 VA Examination Report. As such, a claim for a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim is addressed in the Remand section below. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Anxiety Disorder The Veteran filed a service connection claim for anxiety disorder in April 2011. That claim was granted in a February 2013 rating decision and assigned a 30 percent evaluation pursuant to 38 C.F.R. § 4.130, DC 9413; effective April 16, 2011. The Veteran has appealed the initial rating. As noted above, during the pendency of the appeal, a May 2019 rating decision granted an increased rating for anxiety disorder of 50 percent, effective April 16, 2011, and 70 percent effective April 12, 2019. The evidence of record includes a June 2011 VA medical record noting mild psychological symptoms and the Veteran denied any suicidal ideation. See VA Medical Records Received October 2018. The Veteran underwent a VA examination in July 2012. The examiner diagnosed the Veteran with anxiety disorder manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported living with his sister and being involved in a serious relationship. He further reported that he recently quit his job and was currently looking for a new job. In addition, he stated that he was the current second Vice Commander at the local American Legion and attended weekly meetings. In addition, the Veteran reported current difficulty with anxiety and that he woke up once per week due to “cold sweats.” He stated he had trouble being in large groups. He further endorsed sleep disturbances and endorsed service-related dreams. He denied any current suicidal or homicidal ideation, lack of energy or loss of appetite. The examiner noted the Veteran was casually dressed in clean clothing with no hygiene deficits. His attitude was calm and cooperative, and no psychomotor agitation was observed. His speech was normal in tone and volume, affect reactive and congruent mood. There was no evidence of hallucinations, delusions, obsessions, compulsions, or phobias. He was oriented to date, time, and place. His insight and judgement were found fair and capacity for abstract thought within normal limits. The examiner found the Veteran’s anxiety disorder manifested by symptoms of anxiety, hypervigilance, and chronic sleep impairment. In his November 2013 notice of disagreement (NOD), the Veteran asserted that he had been unable to work in a normal environment without extreme panic attacks for several years, and was unable to maintain a job during the past two years due to social anxiety. Panic attacks reportedly occurred on a daily basis. He additionally endorsed difficulties learning complex commands, mood swings and mistrust of individuals. Further, he reported deteriorating memory causing him to forget simple tasks, hypervigilance and increased social withdrawal. The Veteran asserted that his service-connected anxiety disorder more nearly approximated a 50 percent disability rating. A March 31, 2014 VA mental health initial evaluation noted a diagnosis for anxiety and panic without agoraphobia. The Veteran reported nightmares and thinking of suicide. He also reported hypervigilance, being anti-social, and having crying spells. In addition, the Veteran reported that he had a bad memory and that he could not go into stores when they were busy because he did not want to be around people. With regard to suicidal ideation, the Veteran stated that he planned to hang himself, but denied that he would act on it. He denied any past suicide attempts or harming other people. The Veteran was noted as neat and clean, and that he made no eye contact and “looked down and away.” His speech was clear and thoughts linear and aware. The Veteran was found free of psychosis, his cognition and judgement were good, and insight fair to good. See VA Medical Records Received October 2018. In April 2014, the Veteran denied any anxiety, depression or thoughts of suicide or harming himself or others. A June 2014 VA “Circle of Care” mental health record noted a diagnosis for anxiety. The Veteran was noted as pleasant, alert, and engaged in conversation. His attitude was found appropriate and behavior cooperative. Thoughts were noted as linear and goal oriented. The Veteran denied any current suicidal or homicidal ideation. See VA Medical Records Received October 2018. A September 2014 VA medical record shows the Veteran reported increased anxiety and symptoms including nightmares, isolation and anti-social problems. See VA Medical Records Received September 2014. A February 2015 VA mental health intake evaluation shows the Veteran reported experiencing severe depression and anxiety. He also reported irrational and unhelpful thoughts which he found difficult to manage, including jealousy, control, and rage. He reported being married for 8 months and that the relationship was strained. He also reported recent legal issues resulting in his arrest. He denied having any friends. He also denied any suicidal ideation or thoughts of self-harm. The Veteran reported symptoms of grieving the loss of his dad, feeling empty, depressed nearly every day, frequent nightmares and flashbacks, intrusive memories, anxiety, panic, anger, feelings of rage, avoidance, and quick startle response. The Veteran was noted as casually dressed with good personal grooming. He was found fully alert and fully oriented. The Veteran was noted to position his chair on an angle so he could see the door behind him. He frequently looked at the wall while talking. His speech was found normal in tone and rhythm. Memory was grossly intact. There was no evidence of any delusional thinking or hallucinations. The Veteran was assessed with unspecified depressive disorder and unspecified anxiety disorder. See VA Medical Records Received October 2018. In April and July 2015, the Veteran reported depressive symptoms including crying episodes, and periodic passive suicidal thoughts. He denied any current suicidal ideation. In August 2015, a VA psychiatric record noted the Veteran appeared neat and clean and with good hygiene. The Veteran was found fully oriented with normal memory. He was noted as cooperative, personable, and calm with no unusual movements. The Veteran reported problems falling asleep and falling back asleep. The psychiatrist noted symptoms of irritability, panic attacks, recurrent night terrors, hyper-arousal, recurrent flashbacks, avoidance, and emotional numbing. His speech was found normal. In addition, the Veteran was found to have a normal linear thought process and thought content free from hallucinations or delusions. His insight and judgement were found intact. See VA Medical Records Received October 2018. In a September 2015 letter, the Veteran asserted that he suffered severe anxiety attacks 6 to 14 times per week, heart palpitations, problems breathing, tremors, tingling, blacking out and rage. The Veteran also reported self-isolation and an inability to go into crowded places. A September 2015 VA mental health record noted the Veteran arrived on time, was casually attired, and his personal grooming was neat. His mood was dysthymic, and he was found fully alert. The Veteran reported an increase in panic attacks the past 6 months, with 5 to 7 reported per week. He also reported leaving work early due to his panic attacks. The Veteran denied feeling hopeless or worthless. He also denied any thought of suicide or self-harm. In March 2016, the Veteran was found to have normal affect, and was not found to be a threat to himself or others. In April 2016, a VA medical record shows the Veteran presented as depressed and he reported feeling depressed and anxious. His affect was flat. He was found fully oriented. The Veteran reported an increase in his symptoms the past 4 months, including difficulty leaving his home. He also reported a lot of work related stress. The Veteran denied any thoughts of self-harm or harm directed at other people. He was offered ongoing therapy which he declined. See VA Medical Records Received October 2018. An October 2016 VA medical record shows the Veteran was accepted for a PTSD residential program. It was noted that the Veteran had a history of suicidal ideation, but not any current ideation. The Veteran was also noted to not have a history of any homicidal ideation. The Veteran was found capable of self-preservation and basic self-care. It was noted that the Veteran had a pending warrant for simple assault. He reported drinking a half of a 1/5 pint of vodka daily. Symptoms of depression, anxiety and sleeplessness were noted. See VA Medical Records Received January 2017 and October 2018. During his residential program, a November 2016 polytrauma record evaluating the Veteran for possible TBI shows he reported severe depression, irritability and anger. He also reported having a low frustration tolerance. Cognitive complaints included memory loss for daily and remote information, such as periods of his childhood. The Veteran also reported problems with concentration, and slowed thinking and decision making. In addition, the Veteran reported experiencing road rage and that he preferred isolation. The Veteran was noted as appearing fully alert and oriented. His appearance and thought content and process were found within normal limits. Speech was noted as pressured and shaky. In addition, he was noted a physically restless, sweaty, tearful at times, and appeared to become increasingly tense during the evaluation. Insight appeared to be limited. See VA Medical Records Received January 2017. A January 2017 VA mental health consultation record noted no history of inpatient psychiatric treatment, and that the Veteran once underwent residential treatment. The psychiatrist noted no history of a past suicide attempt. It was noted the Veteran currently worked at VA in housekeeping, and that he lived with his spouse who worked from home. The Veteran denied being close to anyone. His relationship with his spouse was noted as good. The Veteran was noted as alert with good hygiene. His mood was dysphoric. The psychiatrist noted no signs of psychosis, or suicidal or homicidal ideation. Basic reasoning was found intact and the Veteran was noted as well organized. The Veteran was assessed with generalized anxiety disorder, panic disorder, major depression, and PTSD by history. See VA Medical Records Received October 2018. At a March 2018 Board hearing, the Veteran’s representative asserted that the July 2012 VA examination was inadequate because it did not show all of his symptoms. The representative additionally asserted that the Veteran’s memory problems had worsened. In addition, the representative asserted the Veteran had a lot of sleep issues associated with his panic attacks. The Veteran testified that he had crying spells every day and endorsed hypervigilance, isolation, paranoia, and anxiety. He further testified that he could not be around groups of people and he did not feel safe. In a March 2018 statement, the Veteran’s brother reported that the Veteran experienced symptoms of withdrawal, severe anxiety attacks, memory loss, violent outbursts and crying spells. In an April 2018 VA Form 21-4138, Statement in Support of Claim, the Veteran’s service officer noted the Veteran continually suffered from severe daily panic attacks prior to going to work, and that on many occasions he was unable to go to work as a result of those attacks. Additionally, it was noted that in March 2018, the Veteran was suicidal and contacted him explaining he had a loaded gun he intended to use on himself. The service officer stated that he was able to talk the Veteran down, and that the Veteran had continued to contact him letting him know he was ok. The Veteran last underwent a VA examination in April 2019. The examiner noted a diagnosis for anxiety disorder which was found manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he had been married the past 5 years and that he had a 3 year old son. With regard to his marriage, the Veteran reported that his spouse had told him she planned to leave the marriage, but recently found out she was pregnant. Prior to moving into his current house with his spouse, he reported living with his sister for approximately a year during which time he drank alcohol daily. He denied having any friends and rarely had contact with any other family members except his mom whom he spoke to every 2 months. The Veteran reported that for the past 2 years, he worked in pest control which involved working 20 hours per week in the winter, and more hours during the summer. He reported that he chose that job because it involved limited interactions with people and he often traveled place to place in his truck. The Veteran reported interpersonal problems with both coworkers, bosses, and customers at work, that he would call in sick when his anxiety was severe, and that he self-medicated with alcohol during the work-day. He also reported that he sometimes walked into the woods or locked himself in the bathroom during anxiety attacks. In addition, the Veteran reported multiple anxiety attacks per day, including worrying and ruminating, hyperventilating, vomiting, crying, irritability, shaking, difficulty breathing, increased heart rate, dizziness, and fear of “going crazy.” The Veteran reported that he thought about suicide at least three times per week. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impaired judgement; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; suicidal ideation; and, impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran was engaged throughout the interview. The Veteran was noted to speak rapidly at times, and was tearful at times. He was found fully oriented. Lastly, it was noted that the Veteran reported participating in treatment programs in the past, including a residential program, but that he found such treatment not helpful. The Veteran denied receiving any current treatment. The Veteran’s psychiatric disorder has been rated pursuant to 38 C.F.R. § 4.130, DC 9413. Pursuant to DC 9413, a 50 percent rating is assigned for a psychiatric disorder manifested by 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 and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for a psychiatric disorder manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Id. 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. 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 diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). After a review of the evidence of record, prior to March 31, 2014, the Board finds that an initial rating in excess of 50 percent disabling is not warranted. In this regard, prior to March 31, 2014, the Veteran’s psychiatric disorder was found to be manifested by more mild symptoms. Although the Veteran reported having trouble being in large groups, during his July 2012 VA examination, the Veteran reported that he currently served as the Vice Commander for his local veteran’s service organization and that he attended weekly meetings. He further reported being in a serious relationship and living with his sister. Therefore, while the Veteran was diagnosed with anxiety disorder, prior to March 31, 2014, his psychiatric disorder was not shown to be manifested by near-continuous panic or depression affecting the ability to function independently, appropriately or effectively. The Board recognizes the Veteran’s November 2013 NOD in which he reported being unable to work the past two years due to social anxiety, and that he reported symptoms including daily panic attacks, difficulty learning complex commands, mood swings, mistrust of others, memory problems, hypervigilance and increased social withdraw. However, the Board notes that prior to March 31, 2014, the evidence of record does not show symptoms more nearly approximating a higher 70 percent rating such as suicidal ideation, obsessional rituals, speech intermittently illogical, obscure or irrelevant, impaired impulse control such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. Moreover, in his November 2013 NOD, the Veteran also stated that his anxiety disorder more nearly approximated a 50 percent rating. Accordingly, the Board finds that, prior to March 31, 2014, the evidence of record shows the Veteran’s service-connected anxiety disorder more nearly approximated no higher than a 50 percent evaluation. Turning to the period on appeal from March 31, 2014 to April 12, 2019, the Board finds that a staged increased 70 percent rating, but no higher, is warranted. In this regard, the Board notes that a March 31, 2014 VA medical record shows the Veteran endorsed suicidal ideation, obsessional rituals about cleaning and irritability. In February 2015, the Veteran reported irrational and unhelpful thoughts, anger and rage, and that he had been recently being arrested. Thereafter, the Veteran again reported periodic passive suicidal thoughts in July 2015. Irritability was again noted in August 2015. The Board also notes that the record shows the Veteran experienced severe suicidal ideation in March 2018, as documented by his service officer. In consideration of the evidence as a whole, the Board finds that, from March 31, 2014 to April 12, 2019, the Veteran symptoms have been shown to more nearly approximate occupational and social impairment with deficiencies in most areas due to symptoms such as suicidal ideation, obsessional rituals and impaired impulse control. Lastly, the Board finds that a rating in excess of 70 percent is not warranted at any point during the period on appeal. Specifically, the Board finds that the evidence establishes that, throughout the period on appeal, the Veteran’s psychiatric disorder was manifested by the following symptoms: depressed mood; anxiety; suspiciousness; hypervigilance; panic attacks more than once per week or near-continuous panic attacks; chronic sleep impairment; trouble concentrating; flattened affect; impaired judgement; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; and, impaired impulse control, such as unprovoked irritability with periods of violence. The Board notes that the Veteran has not exhibited many of the symptoms specifically contemplated by the higher rating including gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. Although the Board does not diminish the significance of the Veteran’s symptoms, and while he has periodically endorsed suicidal ideation, the Board finds that his symptoms are more appropriately aligned with the symptoms contemplated by the 70 percent rating as he has not been shown to present a persistent danger of hurting himself or others. In sum, prior to March 31, 2014, the preponderance of the evidence of record is against an initial rating in excess of 50 percent disabling. From March 31, 2014 to April 12, 2019, an increased 70 percent rating, but not higher, is warranted. Effective March 31, 2014, the preponderance of the evidence of record is against a rating in excess of 70 percent disabling. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND TDIU As noted above, the Veteran has also reported only being able to work part time with difficulty. He also appears to have asserted that he works in a protected environment, such as either working night shifts or jobs which limit his interactions with the public. See November 2013 NOD, September 2015 VA Medical Record, and April 2019 VA Examination Report. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). Marginal employment is found whenever the 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. 38 C.F.R. § 4.16. However, 38 C.F.R. § 4.16 further provides an exception to the income limitation regarding employment in a protected environment, such as family business or sheltered workplace, on a facts-found basis. Id. As it is unclear whether the Veteran is employed in a protected work environment, or whether his earned annual income from his part-time employment exceeds the amount established by the U.S. Department of Commerce, Bureau of the Census as the poverty threshold for one person, further development of the TDIU claim is necessary to adequately adjudicate this issue on appeal. Therefore, the Veteran should be afforded an opportunity to furnish information about his employment history during the period on appeal to include income he earned or currently earns from any such employment, the number of hours worked and any special circumstances (i.e. protected environment such as a family business or sheltered workshop), so that the Board may make a determination about whether this employment constitutes marginal employment for VA purposes. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran should be specifically requested to provide information as to the income earned from his employment, specify the number of hours per week for any part-time employment, and any special circumstances attendant to such employment. 2. Then, the AOJ must adjudicate the TDIU claim on appeal. If the benefit sought is denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.