Citation Nr: 25003151 Decision Date: 03/05/25 Archive Date: 03/05/25 DOCKET NO. 16-63 352 DATE: March 5, 2025 ORDER Entitlement to an initial rating in excess of 20 percent for service-connected Bell's palsy is withdrawn. Entitlement to an initial rating of 50 percent prior to January 1, 2017, and 70 percent thereafter, but no higher, for service-connected generalized anxiety disorder is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a total disability rating based upon individual unemployability (TDIU) from January 1, 2017, to July 31, 2022, due to service-connected disabilities is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a TDIU from August 1, 2022, is denied. FINDINGS OF FACT 1. In a January 2025 correspondence from the Veteran's attorney, the Veteran withdrew her claim for entitlement to an increased initial evaluation in excess of 20 percent for Bell's palsy. 2. The severity, frequency, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with reduced reliability and productivity prior to January 1, 2017, and occupational and social impairment with deficiencies in most areas thereafter. 3. From January 1, 2017, to July 31, 2022, the Veteran's service-connected disabilities were shown to have precluded her ability to secure and follow a substantially gainful occupation consistent with her education and occupational background. 4. From August 1, 2022, the Veteran's service-connected disabilities were not shown to have precluded her ability to secure and follow a substantially gainful occupation consistent with her education and occupational background. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a disability rating of 50 percent prior to January 1, 2017, and 70 percent thereafter, but no higher, for generalized anxiety disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 3. The criteria for entitlement to a TDIU from January 1, 2017, to July 31, 2022, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 4. The criteria for entitlement to a TDIU from August 1, 2022, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to June 1985. She had subsequent service in the Air Force Reserves from June 1985 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2023, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. This case was last before the Board in August 2023, at which time it denied a claimed for an increased initial rating in excess of 30 percent for the service-connected generalized anxiety disorder and granted an increased rating of 20 percent for the service-connected Bell's palsy. The Veteran appealed that decision to the United States Court of Appeals for Veteran's Claims (Court), which issued a February 2024 Joint Motion for Partial Remand (Joint Motion) returning the claims to the Board for the correction of identified deficiencies in the decision. As such, the Veteran's claims are once again before the Board for adjudication. Upon return of the case to the Board, the Veteran's attorney has raised the issue of entitlement to a TDIU based upon the Veteran's service-connected generalized anxiety disorder. In this regard, it was noted that the Veteran has been unable to obtain or maintain a substantially gainful occupation since at least January 1, 2017, due to interference from her generalized anxiety disorder. See January 2025 Appellate Brief; January 2025 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). As such, the Board shall adjudicate the Veteran's claim for a TDIU as part of her claim for entitlement to an increased evaluation for her generalized anxiety disorder. Withdrawal An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant through her attorney has withdrawn the appeal with regard to the issue of entitlement to an increased initial evaluation in excess of 20 percent for Bell's palsy and, hence, there remain no issues for appellate consideration. See January 2025 Attorney's Brief. Accordingly, the appeal and it is dismissed. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran contends a higher rating is warranted for service-connected generalized anxiety disorder because emotional and financial stresses from caring for and losing her husband throughout the entirety of 2017 have caused her disability to increase. See March 2023 Board Hearing Transcript. In this case, the Veteran's service-connected generalized anxiety disorder is currently evaluated as 30 percent disabling effective September 30, 2013, pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. Under DC 9413, the following applies: A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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. A 70 rating is warranted when 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Turning to the procedural evidence, the Veteran initially filed a claim in September 2013. An August 2014 rating decision granted service connection for generalized anxiety disorder with a 30 percent evaluation effective September 30, 2013. The Veteran timely appealed, and a December 2019 Board decision remanded the increased rating claim. The Veteran underwent a VA examination on March 16, 2020. Based on this procedural history, the generalized anxiety disorder claim is an initial claim dating back to the September 2013 claim. Turning to the evidence of record, in September 2013, the Veteran was seen by her private psychiatrist for treatment of her anxiety. It was indicated that she was returning to school and would require increased medication to help deal with the anxiety experienced in such a setting. In July 2014 the Veteran underwent an in-person VA psychiatric examination which noted review of the VA e-folder, took a subjective history, and in-person objective testing. It was noted that the Veteran was currently working on her associate's degree and had logged 300 hours volunteering in a social work capacity for VA. There was a diagnosis of unspecified anxiety disorder. The Veteran reported anxiety; chronic sleep impairment; and disturbances of motivation and mood. She denied suicidal ideations. The examiner found, "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." In a December 2014 VA treatment note, the Veteran reported an increase in her anxiety levels which recently abated after completion of her final examinations for school. The Veteran underwent a Learning Disability Evaluation and General Personality Evaluation (Personality Evaluation) in December 2014 performed by private licensed psychologist, S.M.K., Psy.D. The Veteran reported depressed mood; anxiety; worrisome; nervousness; sleep disturbances; crying spells; low appetite; low energy levels; and prescription medication, Zoloft. There was a diagnosis of generalized anxiety disorder, unspecified depressive disorder, and low average intellectual function. The Veteran appeared appropriately dressed; oriented to person, place, time and situations; speech processes were clear and logical with no evidence of any circumstantial and/or pressured speech; mood and affect were anxious; thought processes were logical; memory functioning and concentration were somewhat variable; there was no evidence of hallucinations, paranoia, delusional thinking, confusion, or mania; and suicidal and homicidal ideation was absent. Dr. S.M.K. noted that testing revealed she was "functioning intellectually in the low average range of abilities with better-developed verbal skills relative to visual motor skills," had no "diagnosable specific learning disorder," and was "experiencing significant amounts of anxiety" consistent with GAD along with an unspecified depressive disorder. The psychologist found that she was "not a good candidate for a traditional four- year academic environment" and would be better suited to a two-year or vocational training program. The psychologist also stated that she "should not be placed in any setting that is high stress or high demand" and will "require a somewhat structured environment." In another VA treatment note latera that month in December 2014, the Veteran reported worrying about "everything." Her anxiety caused her to stress eat when she was upset. In addition, she reported "poor sleep," "feeling down," and suffering from "tearfulness." Her attention was "distractible, brief." In a January 2015 VA treatment noted, the Veteran reported increased "stress and anxiety" related to her estrangement from her daughter. She discussed worrying "to excess" that her daughter's cancer would return. She stated her anxiety affected her" mood and sleep" but, that she started an "anxiety class" that she thought had been "beneficial." A March 2016 VA treatment record showed that the Veteran reported "high" anxiety. She stated that she had a "really bad year" due to the stress of her husband's hospitalization and his drinking problem. She reported her "sleep, focus, and mood" were all impacted, and that she had feelings of "despair" and helplessness. She was worried about her future and her husband, which caused restlessness and an inability to relax. A March 2017 VA treatment record showed that the Veteran reported "excessive guilt" and "self-doubt" over the situation with her husband. She had been caretaking for him since the beginning of the year 2017. She noted worry, anxiety, tension, depression, and insomnia, as well as feeling "on edge." She was "aware she minimizes her distress" and "tired on [sic] not admitting to her real emotional and physical pain." She would not be returning to school to complete her bachelor's degree. Her depression and anxiety screenings were clinically significant, with rating scale scores in the mild and severe range, respectively. A May 2017 VA treatment record showed that the Veteran reported "great gains" from fluoxetine, which she recently began taking. She felt "more energy, focus, and drive" and "less tension." She was happy that she was coping better, but still unsure what to do about school. An April 2018 VA treatment record showed that the Veteran reported that she felt "pretty good," but struggled with what "normal" was to her, as her husband had recently passed away. She had bought an abandoned house as a project for a "nice distraction" from her feelings. She voiced concern with anxiety and "anxiety dreams" that affected her sleep regulation. A February 2019 VA treatment record showed that the Veteran reported that she was doing "ok." She had a "few good friends" with whom she spent a lot of time. Despite this, she said that she had been "overwhelmed" with "downsizing." VA treatment records from October 2014, November 2014, March 2015, April 2015, June 2015, September 2015, January 2016, April 2016, July 2016, December 2016, February 2017, April 2017, July 2017, August 2017, September 2017, October 2017, December 2017, February 2018, June 2018, August 2018, and April 2019, show the Veteran was oriented to person, place, time and situations; presented with appropriate hygiene; interacted cooperatively with work and social relationships; had normal speech, appropriate affect, linear and logical thought process, realistic and coherent thought content with no psychosis; had intact insight and good judgment; endorsed an "okay" mood; and showed that her remote and recent memory were grossly intact. Panic attacks were not reported during this period. On March 16, 2020, the Veteran underwent an in-person VA mental disorders examination which noted review of the VA e-folder, took a subjective history, and in-person objective testing. The Veteran reported having significant anxiety about two to three times per week. She spends most of her time doing home renovations, yardwork, and taking trips with her daughter. She has four close friends whom she has contact with "constantly" and endorsed contact with her three siblings. The Veteran had indicated successfully obtaining her associate's degree in 2015, but abandoned further pursuit of her bachelor's degree in March 2017 upon the sudden illness and subsequent death of her husband. Current symptoms were noted as depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran denied suicidal/homicidal ideation, intent, or plan. There was a diagnosis of unspecified anxiety disorder. The examiner found, "occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." The Veteran appeared appropriately groomed. Her speech and volume were at a normal rate and her attention and concentration were intact. She maintained appropriate eye contact during the examination. Affect was broad and mood was depressed. She demonstrated average to above intellectual functioning. Her thought processes were linear, and she did not display any perceptional issues/psychotic features. March 2020 and September 2020 VA treatment records included mental health notes. It was noted the Veteran was pleasant and oriented to person, place, time and situations; had appropriate hygiene; displayed coherent and logical speech; had appropriate affect; did not have psychosis or disorganized thinking; had judgement and insight intact; and endorsed an "okay" mood. She denied suicidal or homicidal ideations. In an April 2021 VA treatment record, the Veteran reported that she had been "really good." She had recently joined a gym and was having "a lot of fun." She felt "good with" her current dosage of fluoxetine. In a June 2022 VA treatment record, the Veteran reported that she weaned herself off of fluoxetine and felt "a difference" in her stress levels, but wanted to stay off of the medication, as she felt "good." Her doctor thought her "excellent exercise routine help [ed her] mood." She was involved with her church, which provided her with additional social support. During the March 2023 Board hearing, the Veteran testified that since her husband's death in 2017, she has chronic sleep impairment, increased emotional and financial stress, and increased anxiety: [B]ecause of all the things that I have been through Now that he's gone [husband passed away in 2017], everything, it's been so stressful, everything. Just when one passes away unexpectedly like that, you have to try to pick up the slack and maintain your You just want to keep living the way you were living before, and it's very, very difficult and stressful, and I've lost a lot of sleep over it, and I feel like my anxiety has increased. I was on medication for quite a while, a couple of years, but I weened myself off, and I just tried to power through. March 2023 VA treatment records include a psychiatry note. Her psychiatrist reported that the last time they spoke to the Veteran was a year ago. The Veteran complained of anxiety, worrying, difficulty relaxing, and difficulty focusing. The psychiatrist observed the Veteran was oriented to person, place, time and situations; appropriate hygiene; cooperative; normal speech; appropriate affect; linear and logical thought process; thought content no psychosis; insight intact; judgment fair; cognition intact; and "good" mood. She denied suicidal ideations. She further reported that she had been "ok." She "felt better on fluoxetine," but did not want to resume medication, as she thought that she was "managing pretty well." However, she recalled how" she felt better on fluoxetine" several times. At the end of the appointment, she concluded that she wanted "to restart a low-dose "to see if it made life" a little bit easier." A September 2023 VA treatment record for a psychiatric visit indicated that the Veteran reported a good mood and that she was enjoying life. She goes to gym regularly and her medication was noted as working well. In an October 2024 statement from the Veteran's current employer, where she worked at a school as a custodian, it was indicated that she required a reduction in hours to a 4-hour shift during the daytime, as it allowed her more time to manage her anxiety better. In an October 2024 statement from a friend of the Veteran's, it was indicated that her anxiety "seemed worse than most people I know" and that the Veteran relied on her for assistance in managing financial concerns and downsizing her home. The Veteran provided the results of a January 2025 private psychiatric examination. Upon a review of her medical records, subjective interview, and objective in-person testing, the Veteran was diagnosed with generalized anxiety disorder. She recounted her experience of anxiety symptoms since her time in military service and how it has affected her "spotty" work performance and history since that time. The Veteran indicated that "I'm too anxious to be around people, and the anxiety just makes it all worse." In particular, she recounted how life stressors have made her symptoms worse, such as in 2010 when her daughter was diagnosed with Hodgkin's lymphoma. In 2012, the Veteran reported entering a program of study in social work to obtain an associate's degree so that she could serve veterans, in which she completed hours of volunteer work as well. She struggled with performance anxiety, but was given accommodations to complete her coursework. The examiner noted that, in March 2017, she dropped out of school in pursuit of her bachelor's degree, citing that "it was all just too much," after having to be the primary caretaker of her husband since the beginning of the year. The Veteran's husband passed away in October 2017 after battling illness that had been ongoing throughout 2017. During that period of time, she became "very depressed" and "couldn't focus." As she was her husband's primary caretaker during that time period, she blames herself and the symptoms of her disorder as causing his death due to her inability to properly care for him. Thereafter, she lost all motivation and had an extremely difficult time taking care of the estate and downsizing her household, requiring outside help. The Veteran now lives a townhome community and has sever anxiety over concerns of privacy and avoiding her neighbors. The examiner further noted that, in August 2022, the Veteran took a job with a school as a custodian, working fulltime, but primarily in the afternoon and evening hours. She began experiencing high levels of anxiety during shifts and experiencing panic attacks during her late afternoon and evening drives which were particularly triggering for her due to difficulty with her eyesight. She currently struggles to cope with her anxiety, which constantly interferes with her thought-processes, but noted that exercise routines have been particularly helpful. The examiner found that the Veteran experienced anxiety and worry (apprehensive expectation), more days than not, to varying degrees since service. She worries about a large number of events and activities, including school and work performance. She finds it difficult to control her worry, and her anxiety symptoms include, but are not limited to restlessness, being easily fatigued/overwhelmed, difficulty concentrating, and sleep disturbance. The Veteran's anxiety symptoms cause clinically significant impairment in her social and occupational functioning. Her symptoms are not attributable to the effects of a substance or another mental disorder. It was noted that beginning in 2013 to 2017, the Veteran's overall symptoms were consistent with occupational and social impairment with reduced reliability and productivity, as though she had stress and anxiety related issues associated with school and work, she was nonetheless able to function in those instances with minimal accommodations. It was stressed that, during this period, as consistent with the December 2014 Personality Evaluation, that the Veteran "should not be placed in any setting that is high stress or high demand." As such, due to her life circumstances and minimal accommodations during that time period, the Veteran was still capable of functioning at acceptable levels in most areas of her life, despite reduced reliability and productivity in work and school settings. However, the examiner noted that, by 2017, due to the high intensity demand of care for her husband's illness, subsequent death, and aftermath, the Veteran was regularly exhibiting symptoms of deficiencies in most areas of functioning from that time period thereafter. In particular, it was noted that the Veteran's reports of difficulties with sleep, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances suggested deficiencies in most areas of functioning. The examiner found that: [S]ince her condition worsened in 2017, [the Veteran] describes a flatter affect. She can engage in conversation, but her speech pattern remains rushed and circumstantial. She can only function for a limited number of hours at her current job. Her supervisor is very understanding and supportive of accommodations, including extra time. The role is similar to her previous work in warehousing, but on a much smaller scale with limited social interactions with a handful of coworkers. Since her husband's death, she's relied heavily on her friend/advisor for the organization of her home and finances. Lastly, although it was noted that the Veteran's condition appears to be stable for now, it is only on account of the extreme accommodations currently afforded in her home and work environments. If any stress variable were to enter the picture or her support structure collapsed, she would certainly continue to experience deficiencies in most areas. A vocational assessment was also provided in January 2025. The examiner took note of the Veteran's history of generalized anxiety disorder and work history. It was noted that the Veteran has a history of high anxiety and sleep disturbance that significantly inhibits her abilities to focus and stay on task in work and school settings. She is also shown to be unable to adapt to changes in circumstances, stating that "I need everything to be planned out." She easily becomes overwhelmed and cannot be around large groups of people. She also experiences significant periods of depression and lack of motivation. She has required the assistance of another in her activities of daily living and significant accommodations in her work environment, such that her current employment would be acceptably classified as a protected work environment. After a review of all of the evidence, the Board finds the criteria for a disability rating of 50 percent prior to January 1, 2017, and 70 percent thereafter for service-connected generalized anxiety disorder are met. Prior to January 1, 2017 A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity. During the time period prior to January 1, 2017, the medical evidence of record more nearly approximates a 50 percent rating, with demonstrated symptoms of flattened affect; circumstantial, circumlocutory, or stereotyped speech; and difficulty in establishing and maintaining effective work and social relationships that show overall occupational and social impairment with reduced reliability and productivity. The Veteran was able to complete an associate's degree and many hours of volunteer work during this time period. However, it must be noted that such was only possible due to a combination of medication, accommodations, and, most importantly, a lack of significant unexpected stressors, the latter of which would be the most significant factor of her condition's decline commencing in January 2017. Without such during this time period, her productivity would have declined and she would not have been reliably and consistently present in school or volunteer work assignments. Furthermore, while the Veteran appears to have been withdrawn from others during this time period, evidencing a difficulty in establishing and maintaining effective work and social relationships, she was not completely isolating from others as would later come to be in 2017, which is more consistent with the criteria for a 50 percent evaluation. However, based on the evidence, the Board does not find occupational and social impairment with deficiencies in most areas during this time period, as there were no significant notations referring to the Veteran's decline in activities of daily living or other social functioning. Although treatment notes in 2016 began to indicate that problems in her home life were beginning to appear with her husband's drinking and increasing illness, it did not appear to have taken a significant toll that would spread into to all aspects of her life until later in January 2017, when she assumed primary caretaking responsibilities until his death later that same year. Additionally, although it was noted as early as December 2014 that the Veteran experienced difficulty in adapting to stressful circumstances (including work or a worklike setting), such was, as previously discussed above, effectively countered during this time period with medication, accommodations, and a lack of any significant stressful circumstances requiring such adaptation. As such, the Veteran's condition, while having the potential to be exacerbated by her circumstances, remained at a lower baseline level during the time period in question. Accordingly, the Board finds the severity, frequency, and duration of the Veteran's overall symptoms are most accurately contemplated by the 50 percent rating under DC 9413 during this time period. Based on the foregoing, the Board finds an evaluation of 50 percent, but no higher, prior to January 1, 2017, for generalized anxiety disorder is warranted. From January 1, 2017 A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas. During the time period from January 1, 2017, the medical evidence of record more nearly approximates a 70 percent rating, with demonstrated symptoms of near continuous panic and depression; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective work and social relationships that show overall occupational and social impairment with deficiencies in most areas. The Board finds that date of January 1, 2017, is most appropriate because all references to the point at which the Veteran's condition significantly increased in severity generally refer to the beginning of or January 2017 without reference to a specific day. Therefore, giving the Veteran the benefit of the doubt, the Board finds that January 1, 2017, would be the earliest date within the designation of that month and year to which the Veteran, her representative, and the medical evidence of record have all refereed throughout the claim. Beginning during this period, the Veteran's life circumstances dramatically changed with the sudden illness and death of her husband as well as the ensuing aftermath. Although, as noted above, the circumstances leading to these events began manifesting in the year prior, their cumulative effects did not fully take hold until, at the earliest, January 2017, when the Veteran had to assume primary caretaking responsibilities for her husband and later dropped out of her continuing school program for her bachelor's degree, as medical records began to note a significant increase in symptoms of excess worry, anxiety, tension, depression, and insomnia. Notably, beginning at this time, the Veteran began to score in the severe ranges on depression and anxiety screenings. She also began isolating and demonstrated an inability to socialize or interact with others, such was when she moved to a townhouse community after her husband's death and avoided any contact with others or when she had to be given special accommodations at work to minimize interactions in her current duties as a custodian. The Veteran also had to have the assistance of another to help her downsize her household and organize her finances after her husband's death, for which she had previously been able to accomplish on her own. These factors, taken together, are more indicative of a condition contemplated by a 70 percent rating under the rating schedule. However, based on the evidence, the Board does not find total occupational and social impairment during this time period, as there were no significant notations referring to the Veteran's complete total inabilities in occupational social settings. Rather, the Veteran was still able to maintain a close circle of 4 friends and able to provide work as a custodian in a controlled and protected setting. Furthermore, she did not exhibit symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Although she did require the assistance of another for downsizing her house and managing finances, it did not appear that this otherwise demonstrated any intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), as these appeared to be more extraordinary tasks related to the aftermath of her husband's death as opposed to activities of daily living. Accordingly, the Board finds the severity, frequency, and duration of the Veteran's overall symptoms are most accurately contemplated by the 70 percent rating under DC 9413 during this time period. Based on the foregoing, the Board finds an evaluation of 70 percent, but no higher, from January 1, 2017, for generalized anxiety disorder is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs against the claim as to higher evaluations for the service-connected generalized anxiety disorder, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is rated at 40 percent or more and the combined disability rating is at least 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric; multiple injuries incurred in action; or, multiple disabilities incurred as a prisoner of war. Id. For the purposes of § 4.16(a), marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a 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. The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to the veteran's age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person's ordinary activity (see 38 C.F.R. § 4.10), and such has been done here. The findings, comments and opinions of the VA examiners and the private psychologist have appropriately been considered as pertinent evidence, along with the Veteran's competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. The Veteran contends that her service-connected disabilities, specifically her generalized anxiety disorder and Bell's palsy render her unemployable. See January 2025 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). In particular, the Board notes that the Veteran and her attorney in the January 2025 Appellate Brief have indicated that TDIU is only sought from January 1, 2017, to present. As such, the Board shall limit consideration in the decision that follows to reflect the time period sought. The Veteran's service-connected disabilities include generalized anxiety disorder, rated as 70 percent disabling and Bell's palsy rated as 20 percent disabling. The Veteran's combined disability rating is 80 percent. As the Veteran has a single disability rated at 60 percent (or in the alternative he has a combined rating in excess of 70 percent with at least one disability rated at least 40 percent) from January 1, 2017, the minimum percentage threshold requirements for consideration of a schedular TDIU after that time are met. 38 C.F.R. § 4.16(a). For the purposes of judicial economy, the Board shall not recite the medical evidence previously discussed in the generalized anxiety discussion above, but shall rather incorporate such findings into the discussion that follows. This shall incorporate the discussion of the medical evidence from January 1, 2017, to present for Veteran's generalized anxiety disorder in the increased rating section above, to include the recent January 2025 private examination and vocational assessment. For the Veteran's Bell's palsy during the time period in question, treatment records have not generally shown symptoms that would be noted to interfere with the Veteran's employability. However, the Veteran has further testified at the March 2023 Board hearing as well as evidence presented in her January 2025 vocational assessment that her condition can at times interfere with her inability to see properly and drive a vehicle, particularly in the early evening to nighttime hours, which caused her to have to switch to daytime employment only. Furthermore, it has been indicated that when her condition is experiencing a flare-up, she becomes self-conscious and finds it difficult to be around others as well as causing her generalized anxiety disorder to be exacerbated. In March 2020 the Veteran underwent an in-person VA cranial nerve conditions examination which noted review of the VA e-folder. There was a diagnosis of Bell's palsy. The Veteran reported the right side of her face was initially affected, and now she still notices some droop or "drag" on the right side which worsens whenever she is under stress. She also reported that she will drool on the right side and have some difficulty with eating as a result. The examiner indicated that cranial nerve VII (facial) is affected by the Veteran's condition. The examiner noted that the Veteran had mild difficulty chewing due to her condition. Muscle strength testing for cranial nerve VII was mild in the upper right portion of face (motor: muscles of facial expression; shuts eyes tightly) and mild in the lower portion of face. Sensory exam was normal. The examiner indicated that the Veteran's Bell's Palsy resembled incomplete, moderate paralysis. It was noted that the Veteran's condition did not affect her ability to work. The evidence indicates that the Veteran was unemployed as of October 31, 2012, and entered fulltime schooling thereafter. See January 2025 VA Form 21-8940. In the subsequent treatment records and examinations discussed above, it was indicated that the Veteran completed her associate's degree and was in pursuit of a bachelor's degree until she dropped out due to life stressors and their cumulative effects on her service-connected generalized anxiety disorder and Bell's palsy beginning in January 2017. For several years thereafter she remained unemployed and out of school. However, as indicated on the January 2025 VA Form 21-8940, she re-entered the workforce in August 2022 as a custodian for a school, starting out as a fulltime afternoon/evening employee and then transitioning to a parttime daytime employee as a part of her more comprehensive accommodations for her service-connected generalized anxiety disorder and Bell's palsy. January 1, 2017, to July 31, 2022 In this case, from January 1, 2017, to July 31, 2022, the collective evidence shows that the Veteran's service-connected disabilities did render her unable to secure or follow a substantially gainful occupation throughout that period. In particular, the evidence reflects that the Veteran was in fact unemployed and no longer enrolled in schooling during this time period, a fact that both the medical evidence and the Veteran have attributed to exacerbations in her generalized anxiety disorder by life circumstances, such as having to care for her husband during end of life, grieving his death, and managing the aftermath and downsizing her household. She would not again be gainfully employed until August 1, 2022, and, as discussed in further detail below, such was due only to the extensive accommodations afforded to her in order to enable her to successfully rejoin the workforce. In this regard, the Board notes that the Veteran is significantly disabled during the time period in question, particularly due to her service-connected generalized anxiety disorder as discussed in the increased rating section above, and it appears to have taken her a long time to find the right job that could actually accommodate such. As such, the grant of TDIU for this period of time is distinguishable from the facts and circumstances of the time period commencing August 1, 2022, in that, while the Veteran was significantly disabled throughout the entire time period in question from January 1, 2017, she only successfully demonstrated capabilities of maintaining gainful employment once her current accommodations were afforded beginning August 1, 2022. With the increased evaluation granted by this decision for the Veteran's service-connected generalized anxiety disorder from January 1, 2017, she is currently in receipt of a total combined disability rating of 80 percent. The fact that the Veteran is in receipt of such a high total combined disability rating further indicates that she would be likely considered unable to fulfill the mental and physical demands of gainful employment. Under the typical circumstances of a blue-collar work environment, as is the type of work in which the Veteran was typically employed per her VA Form 21-8940, it is unlikely that she would have been reasonably expected to find employment under the accommodations that she would eventually find in August 2022. As such, under the normal conditions in which she would have been reasonably expected to find employment, the Board does not find that it would have been likely that the Veteran could maintain a substantially gainful occupation. Therefore, the Board finds that the evidence of record supports the Veteran's contention that she is unemployable due the combined effects of her service-connected disabilities. Accordingly, entitlement to a TDIU from January 1, 2017, to July 31, 2022, is granted. August 1, 2022 From August 1, 2022, the collective evidence shows that the Veteran's service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation throughout that period. In regard to the employment beginning August 2022, the Veteran and her representative have argued that such employment was provided under the circumstances of a "protected environment," in accordance with the meaning ascribed to mere "marginal employment" in 38 C.F.R. § 4.16(a), as it was for low pay (although above the poverty level guidelines for the years in question) and required extensive accommodations, including major restrictions on duty hours, relegation to parttime status only, special access to transportation aids, and extremely lenient policies to allow the Veteran time to cope in the event of symptom exacerbations, medical appointments, etc. To this point, the Board disagrees. The Board does note that the Veteran has been shown to require extensive accommodations to be able to continue functioning in her current work environment. This is most notably demonstrated in the extent that her employer has gone to some lengths to provide her with a suitable part-time schedule during daytime hours only that does not deviate or change in any way, particularly on account of the Veteran's inability to handle stressors or unexpected events. Additionally, making sure that she is assigned duties in such a way as to avoid any inadvertent interaction with other employees, including giving her preferred access to a golf cart to traverse her worksite unencumbered. Lastly, the employer is shown as giving the Veteran flexible amounts of time to deal with exacerbations or medical appointments. Furthermore, between August 2022 to June 2023, although the record indicates the Veteran was working full-time, she only appeared to make $8,100.00 for the year of 2022. See January 2025 Appellate Brief. In this regard, it is noted that she only worked for less than half of that year. Therefore, if she had been working at that same rate for the entirety of 2022, her annual income would have been around $19,440.00 ($8,100.00 divided by 5 months of August to December yielding $1,620.00 per month and multiplied by 12 months). Thereafter, the Veteran's continued working full time until June 2023, when she then transferred to part-time status from that time to present in accordance with accomodation from her employer. In both 2023 and 2024, her annual income has been reported at around $23,111.00 each year. See January 2025 VA Form 21-8940. The Board notes that part-time or full-time employment does not necessarily mean gainful as contemplated by the rating schedule, particularly when considering the poverty line established by the US Department of Commerce and where such employment falls in relation. Here, the poverty guidelines for 2022 for a 1-person household in the contiguous 48 states, as the Veteran was an unmarried widow, per release of calculations by the Department of Health and Human Services, was $13,590.00. See 87 Fed. Reg. 3315 (January 21, 2022). For 2023, that amount was $14,580.00. See 88 Fed. Reg. 3424 (January 19, 2023). For 2024, that amount was $15,060.00. See 89 Fed. Reg. 2961 (January 17, 2024). As such, during the periods in question based upon the above estimates of her annual pay, the Veteran would have been above the poverty threshold for the years in question. While marginal employment may be held to exist on when the earned income is above the poverty threshold under the circumstances of a sheltered workplace, this is not such a situation. It is also noted that, just because a Veteran was unemployed or parttime employed (making below the poverty threshold) does not in and of itself demonstrate that the Veteran's service-connected disabilities rendered her unemployable. Rather, during the time period where she was either full-time employed (as she was at the beginning of August 2022) or part-time employed (as is her status from June 2023 currently), the Veteran still showed that she was capable of work. And it is acknowledged that the accommodations the Veteran has been provided by her employer have allowed her to work in both capacities. Nonetheless, since August 1, 2022, she has still been able to remain a contributing member of her organization and remains steadily compensated with wages accordingly for several years now. There is no evidence that the Veteran was selected for, and maintained in, the custodian position in a non-competitive environment or for non-economic reasons as are envisioned by a protected work environment. All of these factors weigh against the assignment of TDIU based on the Veteran's assertion that her employment represents a protected work environment because there is no showing that she's in "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). The January 2025 vocational assessment, although very thorough and illustrative of the Veteran's hardships with her generalized anxiety disorder in particular, did not effectively counter the findings demonstrating that the Veteran was able to overcome her symptoms with the help of the aforementioned accommodations of her employer. While the Board has no doubt that the Veteran experiences a great deal of limitations as a result of her disabilities, the affirmative evidence of record suggesting she is unemployable has stopped short of discussing how she has been able to be accommodated for such as she has evidently demonstrated in her current employment. Also taking into consideration the cumulative effects of all of the Veteran's service-connected disabilities, as discussed above, there were no significantly noted functional impairments for any disabilities other than the effects of the generalized anxiety disorder during this time period as previously indicated. Therefore, even combining the effects of the generalized anxiety disorder with the remaining service-connected Bell's palsy, which was not otherwise shown to result in significant functional impairment, does not culminate in any worse of a functional disability picture, as those conditions did not create any additional functional impairments in and of themselves. In making the above findings, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In reaching this conclusion the Board notes the severity of the Veteran's service-connected disabilities and the difficulties that it has imposed on her employment. To the extent that service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for her disabilities compensate the Veteran for such impairment. Notably, the Veteran is still earning wages, albeit low ones. When coupled with the 80 percent combined evaluation that she is receiving for her service-connected disabilities, the amount she makes in her wages is at least commensurate with what she would receive if entitlement to a TDIU had been found as warranted. As such, the compensatory intentions behind the Rating Schedule's assignment of TDIU is, thus, already satisfactorily addressed by the Veteran's 80 percent combined evaluation and the reasonable accommodations she is currently receiving to continue to remain productively employed. Under the circumstances, to award TDIU in addition would be inconsistent with the public interest in as much as it would counter to the intentions and objectives of the Rating Schedule. It is emphasized that there is no evidence that the Veteran was selected for, and maintained in, the custodian position in a non-competitive environment or for non-economic reasons. LaBruzza, supra. Moreover, there is no suggestion that the accommodations afforded the Veteran in her current employment situation is untenable for the employer to maintain for the foreseeable future. Should the Veteran's employment situation changes, such as losing her job or a significant decrease in wages, she is invited to resubmit the TDIU claim. In sum, the Board finds that the Veteran has not successfully demonstrated that her service-connected disabilities result in the need for a TDIU from August 1, 2022, thereafter. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the weight of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, the claim for TDIU from August 1, 2022, based upon the service-connected disabilities is denied. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan H. 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.