Citation Nr: 21027382 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 11-26 425 DATE: May 5, 2021 ORDER Entitlement to a disability rating of 50 percent, but no higher, for encephalitis residuals, to include headaches, from September 7, 2008 to March 23, 2020, is granted. Entitlement to a disability rating in excess of 50 percent for encephalitis residuals, to include headaches, since March 23, 2020, is denied. Entitlement to a disability rating of 30 percent, but no higher, for encephalitis residuals, to include disequilibrium, for the period from September 7, 2008 to March 23, 2020, is granted. Entitlement to a disability rating of 30 percent, but no higher, for encephalitis residuals, to include disequilibrium, since March 23, 2020, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From September 7, 2008 to March 23, 2020, resolving all reasonable doubt in favor of the Veteran, the Veteran's service-connected encephalitis residuals, to include headaches, have been manifested by very frequent headaches that are completely prostrating, prolonged, and productive of severe economic inadaptability. 2. Since March 23, 2020, the Veteran's service-connected encephalitis residuals, to include headaches, are shown to have caused very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; these symptoms are contemplated by the applicable rating criteria already assigned. 3. From September 7, 2008 to March 23, 2020, and since the date of the claim for an increased rating, resolving all reasonable doubt in favor of the Veteran, the Veteran's vestibular disorder has been manifested by manifested by dizziness, loss of balance, and staggering. 4. Since March 23, 2020, the Veteran's vestibular disorder has been manifested by manifested by dizziness, loss of balance, and staggering. 5. The evidence shows that the Veteran's service-connected disabilities are at least as likely as not preclude the ability to secure and follow substantially gainful employment for the entire period on appeal. CONCLUSIONS OF LAW 1. From September 7, 2008 to March 23, 2020, the criteria for a disability rating of 50 percent for service-connected encephalitis residuals, to include headaches, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Codes 8000-8100. 2. Since March 23, 2020, the criteria for a disability rating in excess of 50 percent for service-connected encephalitis residuals, to include headaches, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Codes 8000-8100. 3. From September 7, 2008 to March 23, 2020, since the date of the claim for an increased rating, the criteria for a disability rating of 30 percent for service-connected encephalitis residuals, to include disequilibrium, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.87, Diagnostic Codes 8000-6204. 4. Since March 23, 2020, the criteria for a disability rating of 30 percent for service-connected encephalitis residuals, to include disequilibrium, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.87, Diagnostic Codes 8000-6204. 5. The criteria for entitlement to TDIU have been 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 1992 to October 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at hearings before the undersigned Veterans Law Judge in March 2014 and November 2020. Transcripts of these hearings are in the Veteran's file. In October 2014 and November 2017, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Of note, in the November 2017 Board remand, it was noted that the Veteran had perfected an appeal of two separate issues, with a Statement of the Case (SOC) issued in January 2017 and a Substantive Appeal received in March 2017. There was, and still is, no indication that these issues have been certified to the Board to date, as they are not listed on any VA Form 8 of record. It is therefore the Board's continued understanding that the issues are still being developed at the Agency of Original Jurisdiction (AOJ) level and that they will be addressed in a later decision. However, the Board notes that one of the issues included in the January 2017 SOC was entitlement to TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of her pending increased rating claim and has accordingly listed the raised TDIU claim as an issue on appeal. In May 2020, the RO granted the separate ratings for encephalitis residuals, to include headaches and for encephalitis residuals, to include disequilibrium, both effective March 23, 2020, and assigned disability ratings of 50 percent and 10 percent, respectively. These claims arose out of the current appeal and the issues will be considered because the evaluations assigned are not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). At the November 2020 Board hearing, the Veteran's representative stated that earlier effective dates were sought regarding the grant of the increased ratings for the Veteran's service-connected encephalitis residuals, to include headaches and encephalitis residuals, to include disequilibrium, prior to March 23, 2020. The earlier effective date issues are part and parcel of the increased rating claims on appeal. As the Veteran's ratings have already been staged, the Board shall determine the propriety of both the dates of the stage and the ratings assigned for the entire appeal period. Thus, the question of whether an earlier effective date for the grants of service connection will be adequately addressed in the increased rating context and need not be considered as separate issues. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to a disability rating of 50 percent for encephalitis residuals, to include headaches, prior to March 23, 2020, is granted, and a disability rating in excess of 50 percent, thereafter, is denied. The Veteran submitted her claim for an increased rating regarding her encephalitis residuals, dated September 7, 2008 and received by VA in October 2008. The Veteran contends that a higher evaluation is warranted for her encephalitis residuals, to include headaches disability. Her service-connected disability is currently rated as 30 percent disabling prior to March 23, 2020, and as 50 percent disabling thereafter, under 38 C.F.R. § 4.71a, Diagnostic Codes 8000-8100. The hyphenated Diagnostic Code designates that residuals of encephalitis (Diagnostic Code 8000) are rated under the criteria for migraine headaches (Diagnostic Code 8100). Under Diagnostic Code 8100, headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated as 10 percent disabling. A 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. Headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the disability rating criteria nor the United States Court of Appeals of Veterans Claims (Court) has defined the term "prostrating." See Fenderson v. West, 12 Vet. App. 119 (1999). According to Merriam Webster's Collegiate Dictionary, 11th Edition (2007), p. 999, "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in Dorland's Illustrated Medical Dictionary, 31st Edition, p. 1554, in which "prostration" is defined as "extreme exhaustion or powerlessness." The word "severe," as used in the various Diagnostic Codes, is not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. During the period on appeal, the Veteran has noted that her headaches have been constant. See January 2011 Statement. In June 2012, she reported that they occurred twice per month, in which she would need to lay down. See June 2012 Decision Review Officer hearing. At the March 2014 Board hearing, the Veteran reported that her headaches occurred twice a month. At the November 2020 Board hearing, the Veteran reported experiencing prostrating headaches, which lasted several hours, and occurred two to four times a month. A private medical examination report, dated in November 2008, shows diagnoses of migraine headaches, vascular headaches, and occipital neuralgia. The Veteran was afforded a VA brain and spinal cord examination in December 2010. It was noted that the Veteran's headaches occurred once a week, usually on right side, and were described as stabbing in nature. The Veteran was afforded a neurological disorders examination that same month. It was noted that the Veteran's headaches were unilateral and consistent with migraines rather than any residual headaches from the encephalitis, in which headaches were located to one side. A private medical examination report, dated in December 2011, shows an impression of headaches. It was noted that the Veteran had difficulty concentrating when she had headaches, described as being located on the right sided temporal area, which were sharp and throbbing in nature. The headaches were associated with nausea, photophobia, and sensitivity to light and could last three to four days at a time. The Veteran was afforded a VA headaches examination in October 2012. The Veteran reported taking medication. The Veteran experienced constant head pain, pain localized to one side of the head which spread outward, and pain worsening with physical activity. Nausea and sensitivity to light and sound were noted. Head pain occurred twice a month and lasted up to 4 days. The location of the pain was on the right side of the Veteran's head. The VA examiner noted that the Veteran's migraines had characteristics of prostrating attacks, which occurred more frequently than once a month. Very frequent prostrating and prolonged migraine attacks and prostrating attacks on non-migraines were not noted. A private medical note, dated in September 2013, shows that the Veteran experienced two headache episodes per month. The Veteran was afforded a VA headaches examination in December 2014. It was noted that the Veteran took medication for the pain. The Veteran experienced pain localized to one side of the head and pain worsening with physical activity. The symptom of nausea was noted. Head pain typically lasted 4 hours to 4 days in duration. No characteristics of prostrating attacks of migraine or non-migraine headache pain was found. The Veteran was afforded a VA headaches examination in August 2016. The Veteran reported current symptoms of dull, continuous pain, mostly on the right side, occurring twice a month and lasting for hours, sometimes days. It was noted that the Veteran took medication for the pain. The Veteran experienced constant head pain, pain localized to one side of the head and pain worsening with physical activity. Sensitivity to light and sound were noted. Head pain lasted more than 2 days on the right side of her head. The VA examiner noted that the Veteran's migraines did not have characteristics of prostrating attacks. The Veteran did have prostrating attacks of non-migraine headache pain. The Veteran was afforded a VA headaches examination in March 2020. The Veteran reported experiencing severe headaches about twice a week, that could last for several days. It was noted that the Veteran used acupuncture for pain relief. Pain localized to one side of the head, pain on both sides of the head, and pain worsening with physical activity were noted. Nausea, and sensitivity to sound were noted. Head pain lasted more than 2 days, which began on the right side and migrated to involve both sides. The VA examiner noted that the characteristics of prostrating attacks of the Veteran's migraines and non-migraine pain occurred more frequently than once per month and were productive of severe economic inadaptability. From September 7, 2008 to March 23, 2020 Resolving reasonable doubt in favor of the Veteran, the Board finds an evaluation of 50 percent, the maximum rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100, is warranted for the Veteran's encephalitis residuals, to include headaches from September 7, 2008 to March 23, 2020. The Board finds that the lay statements and results of the examination reports of record, both private and VA, for this time period show that of the severity and frequency of the Veteran's headaches surpass the rating criteria requiring prostrating attacks that occur once a month over the last several months a 30 percent rating. The Veteran is competent to provide statements regarding her encephalitis residual headache symptoms and resulting functional impairment. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's description of frequent incapacitating headaches due to symptoms such as pain, nausea, sensitivity to light and noise, and pain worsening with physical activity and occurring at least twice a month and lasting from hours to days, supports a finding that the Veteran's encephalitis residuals, to include headaches disorder was capable of producing severe economic inadaptability during this period on appeal. Further, the August 2016 VA examination report noted that the Veteran experienced prostrating attacks of non-migraine headache pain. The Board notes that "severe economic inadaptability" does not require that the Veteran be completely unable to work to qualify for a 50 percent rating under Diagnostic Code 8100, but rather that consideration be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. In this case, the Board finds that the symptoms of the Veteran's encephalitis residuals, to include headaches, are contemplated by the criteria for an evaluation of 50 percent. Accordingly, a disability rating of 50 percent, but no higher, for encephalitis residuals, to include headaches, is granted for this period on appeal. Since March 23, 2020 For the period since March 23, 2020, the Board notes that the maximum schedular rating under Diagnostic Code 8100 for migraine headaches is 50 percent. Therefore, a higher rating would only be available on an extraschedular basis. In order to warrant entitlement to an extraschedular rating, the diagnostic criteria must not reasonably describe the severity and symptomatology of the Veteran's migraine headache disability. A review of the evidence for this time period reveals no indication that the Veteran's service-connected migraines have resulted in any additional symptomatology not contemplated by the 50 percent rating criteria. The March 2020 VA examination report shows that the Veteran's symptoms were noted as pain localized to one side of the head, pain on both sides of the head, pain worsening with physical activity were noted, nausea, and sensitivity to sound. The duration of the pain was noted as lasting more than 2 days with prostrating attacks. In short, there is nothing exceptional or unusual about the Veteran's migraines, in relation to the applicable diagnostic criteria, and an extraschedular rating is not warranted. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). In summary, the Board finds that a 50 percent evaluation for encephalitis residuals, to include headaches, is warranted throughout the appeal period. This determination represents a grant for the period prior to March 23, 2020 and a denial for the period beginning on that date. Entitlement to disability ratings of 30 percent, but no higher, for encephalitis residuals, to include disequilibrium, prior to March 23, 2020, and thereafter, are granted. Next, as noted above, the Veteran submitted her claim for an increased rating regarding her encephalitis residuals, dated September 7, 2008. Currently, the Veteran's service-connected encephalitis residuals, to include disequilibrium, is evaluated as 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Codes 8000-6204, since March 23, 2020. The hyphenated Diagnostic Code designates that residuals of encephalitis (Diagnostic Code 8000) are rated under the criteria for peripheral vestibular disorders (Diagnostic Code 6204). The Veteran contends that either a higher rating should be afforded under Diagnostic Code 6204 and/or that the Board should considered whether a rating would be warranted under other Diagnostic Codes pertaining to diseases of the ear. See November 2020 Board hearing. Specifically, under Diagnostic Code 6205 for Meniere's syndrome. Under Diagnostic Code 6204 for peripheral vestibular disorders, a 10 percent disability rating is warranted for occasional dizziness; and a 30 percent rating is appropriate for dizziness and occasional staggering. Under Diagnostic Code 6205 for Meniere's disease, a 30 percent disability rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a 100 percent rating is appropriate for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. During the period on appeal, the Veteran has noted disequilibrium. At the March 2014 Board hearing, the Veteran reported that she would lose her balance after less than a minute if she was standing without assistance. She noted that she could not walk in a straight line and when she moved her head to the right or the left, it would make her spin. At the November 2020 Board hearing, the Veteran reported the she did not have any balance when she walked. She noted that she staggered and that it was hard for her to walk in a straight line. She stated that she experienced vertigo after bending over or dealing with heights. A January 2010 VA medical note shows an assessment of disequilibrium of unclear etiology since viral encephalitis. The Veteran was afforded a VA brain and spinal cord examination in December 2010. It was noted that the Veteran swayed while walking and while sitting on the examination table. The Veteran reported that her balance was worse when looking overhead or at certain heights and when turning to a new position while in bed. A diagnosis of disequilibrium was provided. The Veteran was afforded an ear disease examination that same month. The Veteran reported that she had difficulty standing up straight and that moving around caused her problems with achieving balance. There were no tinnitus or other ear complaints. The VA examiner stated that the Veteran likely had balance problems secondary to her encephalitis and that the Veteran's did not have peripheral vertigo, as she had no ear complaints and did not appear to have any nystagmus or spinning sensation occurring with her condition. The Veteran was afforded a VA ear examination in August 2016. A diagnosis of vertigo was provided. It was noted that vertigo occurred 1 to 4 times per month and lasted 1 to 24 hours in duration. An audiogram was provided, and the results were negative for hearing loss. The Veteran was afforded a central nervous system and neuromuscular diseases examination that same month. A diagnosis of encephalitis was provided. The Veteran's gait was noted as abnormal, described as slow. Encephalitis, headache, and back pain were noted as contributors to the abnormal gait. The Veteran was afforded a hearing loss and tinnitus examination that same month. Upon examination, the Veteran was found to have normal hearing. Tinnitus was also not diagnosed. The Veteran was afforded a VA ear examination in March 2020. The Veteran reported having trouble with walking, that she was unstable on her feet, and that occasional vertigo was triggered by bending over or looking up. It was noted that vertigo occurred 1 to 4 times per month and lasted less than 1 hour. The Veteran's gait was noted as unsteady, described as slow and with the Veteran walking with her legs wide apart. The Romberg test was found to be abnormal or positive for unsteadiness. The Veteran was afforded a central nervous system and neuromuscular diseases examination that same month. The Veteran's gait was indicated as abnormal, described as slow and wide. The Board acknowledges the Veteran's argument that her service-connected encephalitis residuals, to include disequilibrium disability, should be rated instead under Diagnostic Code 6205, Meniere's syndrome. However, use of this Diagnostic Code is not warranted, as the evidence for the entire period on appeal does not show a diagnosis of Meniere's syndrome. Further, while the August 2016 VA ear examination report shows a diagnosis of vertigo, the audiogram results were negative for hearing loss. The August 2016 hearing loss and tinnitus examination also shows that the Veteran had normal hearing and that tinnitus was not reported or found. As such, even if the Board were to use Diagnostic Code 6205, a higher rating would not be warranted. Next, resolving reasonable doubt in the Veteran's favor, the Board finds that the symptomatology for the vestibular disorder closely approximates that for dizziness and occasional staggering, warranting a 30 percent disability rating for the entire rating period on appeal, beginning September 7, 2008. 38 C.F.R. § 4.124a. The private and VA medical evidence shows diagnoses of disequilibrium and vertigo, associated with encephalitis, throughout the period on appeal. Further, the Veteran has noted reported episodes of dizziness and loss of balance. The Veteran is competent to report symptoms such as staggering because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given her credible complaints of dizziness and staggering, combined with the private and VA examination reports which show objective findings of a vestibular disorder during the appeal period, the Board finds that an initial disability rating of 30 percent under Diagnostic Code 6204 is warranted. A 30 percent disability rating represents the maximum schedular rating available under the schedular criteria of Diagnostic Code 6204. As noted above, the Board finds no other applicable diagnostic codes that would afford the Veteran a higher disability rating. See Schafrath v. Derwinski,1 Vet. App. 589 (1991). In summary, the Board finds that a 30 percent evaluation for encephalitis residuals, to include disequilibrium, is warranted throughout the appeal period. This determination represents a grant of an earlier effective date for the period from September 7, 2008 to March 23, 2020 and a grant of an increased rating for remaining period of time. Entitlement to TDIU is granted. The Veteran's claim for TDIU was found to be raised by the record, as due to her service-connected encephalitis residuals, to include headaches, and encephalitis residuals, to include disequilibrium, and part and parcel of her increased rating claim. Rice, supra. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but 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). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. 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. Marginal employment shall not be considered substantially gainful employment for purposes of 38 C.F.R. § 4.16(a). Generally, marginal employment 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 as the poverty threshold for one person. 38 C.F.R. § 4.16(a); see also Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). However, marginal employment may be held to exist on a "facts found basis" even when earned annual income exceeds the poverty threshold, including but not limited to "employment in a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(a). TDIU may be assigned when the schedular rating is less than total where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has met the threshold requirements of 38 C.F.R. § 4.16(a) for the entire period on appeal, given the grants noted above, establishing 30 and 50 percent evaluations and a combined 70 percent evaluation for the noted disabilities beginning September 7, 2008 and even higher ratings later. Service connection for other disorders, including depressive disorder, has since been granted. The question becomes whether the full criteria for TDIU have been met. A review of the evidence shows that in a January 2011 statement, the Veteran noted that when she started the process (of filing for an increased rating), she had an entry level job, but needed assistance with work. She stated that in 2009, she was working, but her headaches were always there and her medication made her "fuzzy," and that she was unable to perform her job well. She noted that she would make mistakes and that at least once a week, the medication did not work and she would have to go home before her job was done. She noted that she was let go after three months. The Board considers this three-month period of work to be marginal employment for TDIU purposes, not precluding a TDIU grant. The December 2014 VA headaches examination report shows that the VA examiner indicated that the Veteran was unable to work or do anything when the headaches were present. The October 2016 VA ear examination report shows that the VA examiner noted that the Veteran had attempted to work at various places over the years such as restaurants, a grocery store, and as a personal chef. Her dizziness and headaches caused her to be too slow and unable to complete her work in an appropriate amount of time. The VA examiner also noted that the Veteran's unsteadiness was a potential safety hazard. The March 2020 VA central nervous system examination report shows that the VA examiner noted that the Veteran must avoid heights and being around dangerous machinery due to risk of falling. The March 2020 VA headaches examination report shows that the VA examiner noted that during a headache (2-3 days, every 2 weeks), the Veteran could not function other than doing essential activities of daily living. During that time, she could not do any work of any sort. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the finding that the Veteran's service-connected disabilities, particularly to include encephalitis residuals, have prevented her from securing or following substantially gainful employment during the entire pendency of this appeal, since September 7, 2008. This is reflected in the medical findings noted above, and the Board does not find that the brief employment noted during an early time of this appeal constituted more than marginal employment. In light of the symptoms and complaints reflected in the VA examination reports and the lay statements, the Board finds it at least as likely as not that her service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation for the entire period on appeal beginning September 7, 2008. Accordingly, the TDIU claim is granted under 38 C.F.R. § 4.16(a). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A-L Evans, 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.