Citation Nr: 21032168 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-19 178 DATE: May 26, 2021 ORDER An initial rating 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), obsessive compulsive disorder (OCD), alcohol use disorder, and stimulant use disorder (excluding the time periods where a temporary total evaluation has been assigned) is granted, subject to the laws and regulations governing payment of monetary benefits. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period (excluding the time periods where a temporary total evaluation has been assigned), the Veteran's PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. For the entire appeal period, the Veteran's service-connected disabilities did not render her unable to secure and follow a substantially gainful occupation consistent with her educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, for PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2012 by a Department of Veterans Affairs (VA) Regional Office. In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2016 and October 2018, the Board remanded the claims on appeal as well as a claim for service connection for substance abuse. While on remand, a March 2019 rating decision awarded a temporary total evaluation due to hospitalization over 21 days for the Veteran's psychiatric disability from September 6, 2018, to December 1, 2018. Additionally, a January 2020 rating decision awarded service connection for substance abuse, and recharacterized the Veteran's psychiatric disability as PTSD with MDD, OCD, alcohol use disorder, and stimulant use disorder and continued the 70 percent rating for such disability. Thus, as such is a full grant of the benefit sought with respect to the claim for service connection for substance abuse, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Furthermore, an April 2020 rating decision awarded a temporary total evaluation due to hospitalization over 21 days for the Veteran's psychiatric disability from October 23, 2019, to January 1, 2020. Therefore, such issue has been recharacterized as shown below. The appeal now returns for further appellate review. 1. Entitlement to an initial rating in excess of 30 percent prior to November 6, 2013, in excess of 50 percent from November 6, 2013, to April 6, 2017, and in excess of 70 thereafter (excluding the time periods where a temporary total evaluation has been assigned) for PTSD with MDD, OCD, alcohol use disorder, and stimulant use disorder. The Veteran has been assigned an initial rating of 30 percent prior to November 6, 2013, 50 percent from November 6, 2013, to April 6, 2017, and 70 percent thereafter (excluding the time periods where a temporary total evaluation has been assigned) for her psychiatric disability. She contends that such disability is more severe than as reflected by the currently assigned ratings and, therefore, higher ratings are warranted. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's service-connected psychiatric disability is evaluated pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. In this regard, a 30 percent rating is warranted when there is 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). After a review of the record, the Board finds that, for the entire appeal period, the Veteran's PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas. Consequently, an initial 70 percent rating for such disability is warranted. However, as such disability does not result in total occupational and social impairment, an initial rating in excess of 70 percent is not warranted. In this regard, in February 2011, the Veteran reported that her depressive symptoms had worsened since the end of December 2010, but she had been sober for the past 6.5 years. She used narcotics anonymous and faith as coping resources. She also had persistent symptoms of increased arousal, including poor sleep, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, and feeling detached from others. Additionally, several statements were received that same month from the Veteran's friends and family indicating that the Veteran had changed mentally for the worse after her military service. In January 2012, the Veteran was afforded a VA examination, at which time the examiner found that her psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that she had been divorced 3 times and had one son, who was incarcerated. She was also residing in housing provided by the U.S. VETS Program and felt comfortable in such setting as she was among other veterans. She also enjoyed spending time with her 2 grandkids in her leisure time, and reported that she had a strong support system and relied on them daily. With regard to her occupation, she reported she worked as a chef for approximately 25 years, and was currently working part-time as a baker as of December 2011. She stated that she got along well with her supervisor, but was consistently frustrated by a male co-worker, who was "difficult and sarcastic." Her symptoms included depressed mood, anxiety, and chronic sleep impairment. In March 2012, the Veteran applied for Vocational Rehabilitation and Employment services now knows as Veteran Readiness and Employment (VRE) services. She submitted a resume that revealed that she worked as head chef at a resort from January 2008 to December 2010, a kitchen manager at a camp from May 2011 to September 2011, and as an executive pastry chef from December 2011 to May 2012. In February 2013, a letter was received from D.C., a program support assistant, noting that the Veteran was a participant in the compensated work therapy program (CWT) at the VA medical center community resource and referral center (CRRC). She also noted that CWT was a program that consisted of competitive employment with therapeutic supports integrated into treatment for veterans with severe mental illness and/or substance abuse. Additional statements were received from the Veteran's neighbors, who were also a part of the U.S. VETS Housing Program. They indicated that the Veteran had numerous verbal alterations with other residents due to her attitude and aggressive behaviors. The Program director of U.S. VETS Housing also noted that the Veteran had been a resident of such program since March 2011, and was currently unemployed and had difficulty maintaining steady employment. The program director also noted that the Veteran participated in alcohol anonymous and narcotic anonymous meetings weekly due to several relapses during the past year, and had no close relationships with family and friends. The Veteran underwent another VA examination in November 2013, at which time the examiner found that her psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran endorsed not being trusting of others and being irritable towards others, which was not productive in a professional environment. The Veteran was also unable to attend classes in person given her frequency of panic attacks when attempting to use the metro to travel to school. The Veteran reported that her son was out of prison and she would like to be close to him, which she hoped would happen over time. She was still currently employed through CWT at the Washington, D.C. VA medical center (VAMC) CRRC and had been for 6 months. Her symptoms included depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. Subsequent treatment records indicate that, in December 2013, the Veteran was seeking help for her insomnia, irritability, and feeling anxious. She reported that she was able to enjoy life with her son and grandkids, and was spiritual and attended services occasionally. The Veteran also reported that she has a very close and good relationship with her grandchildren. She also stated that she had a good relationship with her sisters. In November 2015, the Veteran reported that she was feeling stressed dealing with work and school. In December 2015, she earned her Bachelor of Arts in Culinary Management with magna cum laude honors at Stratford University. A March 2016 letter was also received from the Veteran's treating VA provider, who had been treating her since June 2015. He stated that she had an increased exacerbation in her symptoms, which made it more difficult socially, occupationally, and with personal relationships. He also noted that she was considering starting an inpatient PTSD program. In April 2016, she reported that she had celebrated a birthday with a friend, and still forced herself to do things and get out of bed. She was also still working full-time, but arrived to work late at times. During her April 2016 Board hearing, the Veteran testified that she was still working, but obtained her job due to her psychiatric disability and took a lot of leave. She also stated that she did not communicate with her family that lived in different states. She further testified that she had panic attacks, anger issues, mood swings, nightmares, suicidal and homicidal ideation, and OCD. Pursuant to the June 2016 remand, the Veteran was afforded another VA examination in April 2017, at which time the examiner found that her psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. She reported that she drank alcohol smoked marijuana daily. Her symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impaired judgment; 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 work like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and persistent delusions or hallucinations. The Veteran also reported that she did not have a good relationship with her siblings but had a "better" relationship with her mother and a good relationship with her son. With regard to her occupation, the Veteran stated that, from 2000 to 2010, she resided in South Carolina, worked sporadically as a cook, and was currently working at the Washington, D.C. VAMC as a peer support specialist. She reported that she was having difficulties in all areas, including negative performance evaluations, write-ups, tardiness/absences, or negative co-worker relationships. She also stated that she did not trust her co-workers, had anger issues, and became violent at times. The Veteran underwent another VA examination in March 2018, at which time, the examiner found that her psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that she lived alone and used to visit her mother and sisters in South Carolina more often, but had not had the motivation recently. She also stated that she wished her son visited more often. The Veteran reported that she missed a lot of time from work and had used her accrued leave as well as leave without pay. She also stated that she was working on Family and Medical Leave Act (FMLA) paperwork so she could go into an inpatient dual diagnosis program. Her symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment, mild memory loss; 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; and suicidal ideation. In January 2019, a letter from the Veteran's supervisor was received, in which he stated that he worked with the Veteran since June 2016 and had been her direct supervisor since June 2017. He stated that she has struggled tremendously with work and was admitted to residential treatment from September 2018 to November 2018. He also noted she was employed in a sheltered environment due to her service-connected disability and was allowed liberal flexibility in her arrival and departure times. She could also take breaks at any time she felt triggered or had a panic attack. He also noted that it was okay for her to leave early if she was not feeling well, and she was not expected to perform to the same standard as a person who had no or one mental health diagnosis. He further noted that, in 2016, the Veteran missed 480 hours from work due to 3 months of residential treatment. In 2017, she missed 441 hours consisting of 149 hours of leave without pay and 79 hours of sick leave. Additionally, in 2018, she missed 200 hours of advance sick leave, 320 hours for residential treatment, and 149 hours of leave without pay. The Veteran was afforded another VA examination in August 2019, at which time the examiner again found that her psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that her main support included her co-workers, but indicated that she only worked sporadically. In this regard, she noted no complaints about her work performance, but she was tardy and missed work. However, she stated that she was late to work due to challenges with transportation as she did not take public transportation. She was supposed to work 40 hours a week, but ended up working only 2 days out of the week. She also reported that she drank every day. The Veteran's symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mid memory loss; impairment of short and long term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; suicidal ideation; obsessional rituals which interfere with routine activities; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran further reported that she was not loving her job and felt like a failure. She had suicidal thoughts about 3 weeks ago and her last attempt was in 2016, after she was triggered by being sexually assaulted. However, she stated that her grandchildren keep her going. The examiner also noted that the Veteran's other symptoms included obsessions, compulsions, and hoarding behavior. The Veteran underwent another VA examination in October 2019, at which time the examiner found that her psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood; anxiety; chronic sleep impairment; 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 work like setting; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In this regard, the examiner noted that the veracity of the Veteran's self-report was questionable given inconsistencies with her responses during past evaluations and her reported level of impairment despite being able to successfully earn a bachelor's degree. The Veteran was afforded another VA examination in December 2019, at which time the examiner found that her psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In this regard, the Veteran reported that she had passive suicidal ideation, to include as recently as the previous day, and had experienced homicidal ideation 2 weeks ago, but denied current suicidal and homicidal ideation. The Veteran reported that she had good relationship with her son and mother. She also stated that she had a few friends who were co-workers, but she isolated herself and did not do anything for fun/leisure. With regard to her job as a peer support specialist, the Veteran reported that she had negative performance evaluations related to missing a lot of work, tardiness, and leaving early. She stated that she had a lot of panic attacks and felt it was a hostile environment to her. She further stated that she has been sexually harassed at work. Her symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. Thereafter, the Veteran requested work accommodations under the Americans with Disabilities Act (ADA), including a flexible schedule with the ability to leave work to attend appointments and flexible arrival and departure times due to her sleep disturbances and medications. She also requested a change in duty stations to a less triggering environment that had less emphasis on trauma and more breaks during work. The Veteran also noted that she had used FMLA leave for hospitalizations in August 2016 to November 2016, September 2018 to November 2018, and October 2019 to December 2019. Her employer approved such requests in March 2020. Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran is entitled to an initial rating of 70 percent, but no higher, for her service-connected PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder as such disability is shown to result in, at most, occupational and social impairment with deficiencies in most areas as a result of her psychiatric symptomatology, including depression; desire to isolate herself; panic attacks; irritability; suicidal ideation; hypervigilance; anxiety; suspiciousness; hallucinations; difficulty concentrating; memory impairment; sleep impairment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work like setting; and difficulty in establishing and maintaining effective work and social relationships. In this regard, while the January 2012 VA examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation, which is consistent with a 30 percent rating under the General Rating Formula; and the November 2013 VA examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula, the Board finds that the totality of the evidence of record, to specifically include the Veteran's and her friends/family lay statements as well as her VA treatment records, suggest a higher degree of impairment. Furthermore, the nature, frequency, severity, and duration of symptoms noted at the April 2017 VA examination, which was the basis for the assignment of a 70 percent rating, have been present for the entirety of the appeal period with similar impacts on her occupational and social functioning. Thus, the Board resolves all doubt in favor of the Veteran and finds that an initial 70 percent rating for her psychiatric disability is warranted. However, the Board further finds that such disability does not result in more severe manifestations that more nearly approximate total occupational and social impairment. Specifically, there is no evidence that the Veteran's PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder results in symptomatology of intermittently illogical, obscure, or irrelevant speech; gross impairment in thought processes or communication; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; or disorientation to time or place. The Board also notes that there is no evidence of record to suggest that the Veteran has memory loss for names of close relatives, own occupation, or own name. In this regard, the Board acknowledges the Veteran has experienced occupational and social impairment; however, the evidence of record does not show total occupational and social impairment due to her psychiatric disability. Specifically, the Veteran has maintained, while strained at times, relationships with her family as she reported a good relationship with her mother, son, and grandchildren throughout the appeal period. She also reported that she had friends that included co-workers and other friends also wrote lay statements in support of her claim. Additionally, while she indicated difficulty in maintaining employment due to her psychiatric disability, the record does not show that such disability has resulted in total occupational impairment, which will be discussed below in addressing her claim for a TDIU. Furthermore, the Board notes that Veteran argued that a higher rating for her psychiatric disability was warranted as her substance use was not considered when she was initially rated for such disability. However, as noted previously, the AOJ recharacterized such disability, to include her substance use as a stimulant use disorder, for the entire appeal period. Thus, the Board finds such argument to be moot as such has been considered in adjudicating her increase rating claim for the entire appeal period. Therefore, based on the foregoing, the Board finds that the Veteran's PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder is manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas without more severe manifestations that more nearly approximate total occupational and social impairment. Therefore, an initial rating of 70 percent, but no higher, is warranted. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected psychiatric disability; however, the Board finds that her symptomatology has been stable throughout the appeal period. Thus, assigning staged ratings for such disability is not warranted. Other than her claim of entitlement to a TDIU, the Veteran nor her representative, have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has applied the benefit of the doubt doctrine, which has resulted in the award of a 70 percent rating for the Veteran's PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder for the entire appeal period. However, as the preponderance of the evidence is against an initial rating in excess of 70 percent for such disability, that doctrine is not applicable in such regard and her initial rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay and profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before." In other words, "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations). 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. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts 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. Id. In regard to determining whether a protected work environment exists, the United States Court of Appeals for Veterans Claims (Court) has indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Additionally, in Judge Lance's concurring opinion, it was noted that where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Id. at 396. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Pursuant to this decision, the Veteran is service-connected for PTSD, with MDD, OCD, alcohol use disorder, and stimulant use disorder rated at 70 percent for the entire appeal period (excluding the time periods where a temporary total evaluation has been assigned), which stems from the effective date of the award of service connection for such psychiatric disability, December 28, 2010. Thus, the Veteran meets the threshold schedular criteria for consideration of a TDIU for the entire appeal period. Additionally, as of December 14, 2015, she is also service-connected for obstructive sleep apnea, which is rated as 50 percent. Nonetheless, for the reasons discussed below, the Board finds that the preponderance of the evidence is against her claim for a TDIU. As an initial matter, the Board notes that the Veteran does not contend, and the record does not show, that her service-connected obstructive sleep apnea impacts her ability to work. Specifically, in her June 2018 Veteran's Application for Increased Compensation based on Unemployability (VA Form 21-8940), the Veteran only alleged that her psychiatric disability rendered her unemployable and, similarly, a May 2019 VA examination found that her obstructive sleep apnea did not impact her ability to work. Additionally, in her June 2018 VA Form 21-8940, the Veteran reported that she was currently employed full-time starting in December 2013, at the D.C. VAMC as a peer support specialist and earned $4,100 per month, which is well above the poverty threshold. She also indicated that she completed 4 years of college. The Veteran further explained that a peer support specialist was a person with a mental health condition who had been trained and certified to help others with similar conditions to identify and achieve specific life and recovery goals. She reported that such employment was considered sheltered due to her limitations and accommodations needed for her psychiatric disability as she had to have a flexible schedule. She also stated that, while working, she may experience numerous triggers, panic attacks, and was constantly on guard due to the presence of veteran patients with the inability to control their emotions, thoughts, and behaviors. She further reported that she had taken well over 345 hours of leave during the past 12 months and was hospitalized for in-patient treatment with the intention of going back for a minimum of 90 days. While the Veteran's earned income is well above the poverty threshold, the Board has nonetheless considered whether her employment is in a protected environment. In this regard, the Board notes that VA has not defined such term in the regulations governing TDIU claims. See Cantrell, supra. Rather, the applicable VA regulations only suggest that a "protected environment" includes "a family business or sheltered workshop." 38 C.F.R. § 4.16 (a). However, as noted above, the Court indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Id. at 392. In the instant case, the Board notes that the Veteran received her job as a peer support specialist through the CWT program. In this regard, the Board recognizes that CWT programs are in a protected environment or sheltered workshop, which may constitute marginal employment rather than substantially gainful employment. See 38 C.F.R. § 4.16(a); 38 C.F.R. § 21.6420 (b) (distinguishing a "work adjustment program, incentive or therapeutic work program, vocational training in a rehabilitation facility, or employment in a rehabilitation facility or sheltered workshop" from "[f]ull- or part-time employment" for pension purposes). Nonetheless, while her employment as a peer support specialist may not be considered substantially gainful employment as such is marginal in nature, the Board finds that the Veteran is not entitled to a TDIU as the evidence of record does not indicate she is unable to secure and follow a substantially gainful occupation consistent with her educational and occupational background. Specifically, the Veteran's employment history consisted mostly of culinary jobs and the evidence of record does not indicate that her psychiatric disability affected her occupationally outside of her specific job as a peer support specialist. In this regard, she was able to obtain a Bachelor of Arts degree in culinary management with magna cum laude honors in December 2015, while going to school full-time. The Veteran also continued seeking employment during the appeal period and, in February 2011, she reported that she was involved with American Works for employment assistance and had a job interview the following week. In March 2011, she also stated that she moved back to D.C. from South Carolina in November 2010 in order to find a job. In September 2011, she reported that she worked at a summer camp in West Virginia and had a decrease in symptoms there, but, upon her return, her old fears/anxieties had also come back, which indicates that working helped with her symptoms. During the January 2012 VA examination, the Veteran also reported that, while she was working part-time as a baker, she got along well with her supervisor and, while she had a problem with a male co-worker, she denied verbal altercations with him as she ignored his provocations. The Veteran also applied for VRE services and was seeking a job in the culinary field. In January 2016, she was determined to be marketable and employable in her profession and did not require additional education/training to obtain suitable employment. She also submitted several listings she had applied for in January 2016 to March 2016. Moreover, in an April 2013 CWT note, the Veteran reported that she liked and enjoyed all of her past jobs, and the economy, rather than her psychiatric symptoms, had caused her unemployment in the past. Additionally, when she began working as a peer support specialist, she stated that she was very happy with the job and enjoyed her work. See December 2013 and March 2014 VA treatment records. Furthermore, in her June 2018 VA Form 21-8940, the Veteran recognized that her job as a peer support specialist triggered her past trauma as she experienced numerous triggers, panic attacks, and was constantly on guard due to the presence of veteran patients with the inability to control their emotions, thoughts, and behaviors. Additionally, in June 2018, the Veteran reported that she wanted to return to a residential program in part to be removed from her triggering environment and, in September 2019, she stated that she had multiple triggers in her work environment that made it difficult for her to function. Furthermore, while the Board acknowledges that the Veteran took extensive leave due to her psychiatric disability, such can also be attributable to her specific job as a peer support specialist as her symptomatology was triggered by such job and not her past work in the culinary sector. Additionally, even if the Veteran was employed within an occupation consistent with her educational and occupational background, she would still be protected under the FMLA and ADA, and could still take such leave for in-patient treatment and/or appointments. Moreover, after her work accommodations were approved, the Veteran reported that she was doing well at work. See March 2020 VA treatment record. Thus, while The Board acknowledges that the Veteran's psychiatric disability causes occupational impairment which may well deter potential employers from hiring her, such is not the determinative factor in whether one meets the criteria for a TDIU. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. In this regard, the Veteran has been awarded a 70 percent rating in light of such impairment and she has been found to have, at most, occupational and social impairment in most areas due to such symptoms, but not total occupational and social impairment. Furthermore, VA clinicians throughout the appeal period have consistently found the Veteran was generally oriented to time and place, communicated well, and possessed good cognition. Thus, in light of such factors, the Board finds that, despite her psychiatric disability, the Veteran possess the mental ability to perform the activities required by an occupation consistent with her college education and former employment in the culinary field. Consequently, entitlement to a TDIU is not warranted at any point pertinent to the appeal period. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, such must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark, 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.