Citation Nr: 18148445 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-01 217 DATE: November 8, 2018 ORDER A rating in excess of 60 percent for pancreatitis, status-post laparoscopic cholecystectomy is denied. A rating in excess of 10 percent for traumatic brain injury (TBI) is denied. Prior to April 16, 2014, a 70 percent disability rating is granted for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD). From April 16, 2014, a disability rating in excess of 70 percent for PTSD with MDD is denied. REMANDED A total disability rating based on individual unemployability (TDIU) prior to January 30, 2015 is remanded. FINDINGS OF FACT 1. The Veteran’s pancreatitis, status-post laparoscopic cholecystectomy, is not manifested by frequently recurrent disabling attacks of abdominal pain with few pain-free intermissions and with steatorrhea, malabsorption, diarrhea and severe malnutrition. 2. The Veteran’s TBI symptoms do not satisfy the criteria for level 2 impairment in any facet. 3. Prior to April 16, 2014, the Veteran’s PTSD with MDD was manifested by occupational and social impairment with deficiencies in most areas (but was not manifested by total social and occupational impairment). 4. From April 16, 2014, the Veteran’s PTSD with MDD was manifested by occupational and social impairment with deficiencies in most areas (but was not manifested by total social and occupational impairment). CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for pancreatitis, status-post laparoscopic cholecystectomy, have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. § 4.114, Diagnostic Code 7347 (2017). 2. The criteria for a rating in excess of 10 percent for TBI have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8045 (2017). 3. Prior to April 16, 2014, the criteria for a 70 percent rating (but not higher) for PTSD with MDD have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 4. From April 16, 2014, the criteria for a rating in excess of 70 percent for PTSD with MDD have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the Army National Guard from November 2002 to February 2003, and had active duty from April 2004 to January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. The Board notes that jurisdiction now rests in Detroit, Michigan. The issue of entitlement to TDIU is raised by the Veteran’s contentions. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 60 percent for pancreatitis, status-post laparoscopic cholecystectomy The Veteran asserts that his pancreatitis, status-post laparoscopic cholecystectomy, warrants a rating higher than 60 percent. A 60 percent rating is assigned for pancreatitis with frequent attacks of abdominal pain, loss of normal body weight and other findings showing continuing pancreatic insufficiency between acute attacks. 38 C.F.R. § 4.114, Diagnostic Code 7347. A 100 percent rating is assigned for pancreatitis with frequently recurrent disabling attacks of abdominal pain with few pain free intermissions and with steatorrhea, malabsorption, diarrhea and severe malnutrition. An October 2010 service treatment record noted that the Veteran had acute pancreatitis and a cholecystectomy. It was further noted that the Veteran did well “for a while” following his endoscopic retrograde cholangiopancreatography, but that in the last 5 to 7 days he had a recurrence of supraumbilical pain consistent with chronic pancreatitis. In a July 2012 VA examination of the pancreas, the examiner noted a diagnosis of pancreatitis in 2010. The Veteran stated that since his laparoscopic cholecystectomy in 2010, he continued to have abdominal pain and gastrointestinal symptoms and was on pain medication. It was noted that he was recently hospitalized for recurrent chronic pancreatitis. The examiner noted that continuous medication was required for pain and nausea due to chronic pancreatitis. The examiner noted that the Veteran had 8 or more moderately severe attacks of abdominal pain in the past 12 months and 4 or more severe attacks of abdominal pain in the past 12 months. The characteristic of the Veteran’s remissions/pain free intermissions between attacks was continuing pancreatic insufficiency between attacks. The examiner noted that the Veteran had the following symptoms attributable to the Veteran’s pancreas condition: constant steatorrhea; malabsorption if the Veteran waited too long between meals, needing to use the bathroom within a half hour of eating; diarrhea right after meals; and weight loss. In a July 2013 VA treatment record, it was noted that the Veteran had chronic pancreatitis with multiple acute flares since 2009. He was most recently hospitalized in November 2012. In a July 2014 pancreas VA examination, the Veteran reported that he took continuous pain medication for his pancreas condition. The examiner noted that the Veteran had 8 or more attacks of mild abdominal pain in the past year. The examiner further noted that the Veteran had 8 or more attacks of moderately severe abdominal pain in the past year and 6 or more attacks of severe abdominal pain in the past year. The characteristic of the Veteran’s remissions/pain free intermissions between attacks was few pain-free intermissions and other findings showing continuing pancreatic insufficiency between acute attacks. The examiner noted that the Veteran had the following symptoms attributable to the Veteran’s pancreas condition: steatorrhea – the Veteran reported he had diarrhea stool after almost every meal; diarrhea – again noted after almost every meal. In a December 2015 pancreas VA examination, the Veteran reported random bouts of severe pain requiring pain medication. He also reported frequent diarrhea with rare instances of bowel incontinence. He said he had 2 or 3 diarrhea stools per 8 hour period. He further reported constant abdominal pain with very few pain-free days. He said he could be pain-free for a few days up to 1 week but that thee breaks were rare. The examiner noted that the Veteran had 8 or more attacks of mild abdominal pain in the past year. The characteristic of the Veteran’s remissions/pain free intermissions between attacks was few pain-free intermissions. The examiner noted that the Veteran had the following symptoms attributable to the Veteran’s pancreas condition: steatorrhea – the Veteran reported having at least 1 fatty stool daily; diarrhea – the Veteran reported having diarrhea stool after most meals. Overall, the evidence does not show that the Veteran’s pancreatitis, status-post laparoscopic cholecystectomy warrants a 100 percent rating. The July 2012 VA examination showed that the Veteran had frequently recurring disabling attacks of abdominal pain with continuing pancreatic insufficiency between attacks, as well as steatorrhea, malabsorption, diarrhea, and weight loss. Although the Veteran seems to have had few pain-free intermissions, there is no evidence of severe malnutrition. The July 2014 VA examination showed that the Veteran had frequently recurring disabling attacks of abdominal pain with few pain-free intermissions and other findings showing continuing pancreatic insufficiency between acute attacks, as well as steatorrhea and diarrhea. However, malabsorption, and severe malnutrition were not noted. Finally, the December 2015 VA examination showed that the Veteran had frequently recurring disabling attacks of abdominal pain with few pain-free intermissions, as well as steatorrhea and diarrhea. However, malabsorption, and severe malnutrition were not noted. Thus, a 100 percent rating is not warranted for any time during the rating period, because the disability does not more nearly approximate the schedular criteria necessary for assignment of that disability rating. The Board notes that a separate rating has been considered for the Veteran’s manifestations of diarrhea as analogous to Diagnostic Code 7319. However, the regulations specifically provide that certain coexisting diseases of the digestive system do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113 (2017). Consequently, by law, ratings under Diagnostic Codes 7301 to 7329, 7331, 7342, and 7345 to 7348 may not be combined with each other. 38 C.F.R. § 4.114. In this case, Diagnostic Code 7347 provides a higher rating than Diagnostic Code 7319 (where the maximum schedular rating is 30 percent). Further, although the rating schedule indicates elevation to the next higher evaluation is permitted where the severity of the overall disability warrants it, the Board finds that this action is not warranted in this case, because Diagnostic Code 7347 specifically indicates that steatorrhea, malabsorption and severe malnutrition are required, in addition to diarrhea, for a 100 percent rating under Diagnostic Code 7347. For the foregoing reasons, the Board finds that a rating in excess of 60 percent for the Veteran’s pancreatitis, status-post laparoscopic cholecystectomy is not warranted. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board notes that this decision does not leave the Veteran without recourse. If the condition worsens in the future such that it causes severe malnutrition, he is encouraged to file a new claim for an increased rating at that time. 2. A rating in excess of 10 percent for traumatic brain injury (TBI) The assigned 10 percent evaluation for the Veteran’s TBI fully contemplates the symptoms associated with his disability. Initially, the Board observes that the Veteran receives a separate 70 percent rating for PTSD with MDD under Diagnostic Code 9411, a 10 percent rating for tinnitus associated with TBI under Diagnostic Code 6260, and a noncompensable rating for bilateral sensorineural hearing loss associated with TBI under Diagnostic Code 6100. Legal Criteria Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI); emotional/behavioral; and physical. Each of those areas of dysfunction may require rating. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Id. Evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130, the schedule of ratings for mental disorders, when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed that are reported on an examination, rate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one rating, and combine under 38 C.F.R. § 4.25 the ratings for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other ratings. Id. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and level 5, the highest level of impairment, labeled total. However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than total, since any level of impaired consciousness would be totally disabling. Assign a 100 percent rating if total is the level of evaluation for one or more facets. If no facet is evaluated as total, assign the overall percentage rating based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent rating if 3 is the highest level of evaluation for any facet. Id. There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one rating based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single rating under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate rating for each condition. Id. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present to assign a particular evaluation. Id. “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. Those activities are distinguished from activities of daily living, which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. That classification does not affect the rating assigned under Diagnostic Code 8045. Id. The table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; and (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. Even higher numerical designations are warranted for greater degrees of symptomatology. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. Even higher numerical designations are warranted for greater degrees of symptomatology. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; and (2) Social interaction is frequently inappropriate. An even higher numerical designation is warranted for a greater degree of symptomatology. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; and (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation. Even higher numerical designations are warranted for greater degrees of symptomatology. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); and (2) Motor activity mildly decreased or with moderate slowing due to apraxia. Even higher numerical designations are warranted for greater degrees of symptomatology. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); and (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS. Even higher numerical designations are warranted for greater degrees of symptomatology. Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; and (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. An even higher numerical designation is warranted for a greater degree of symptomatology. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; and (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. Even higher numerical designations are warranted for greater degrees of symptomatology. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. Factual Background At a July 2012 TBI VA examination, the examiner noted a diagnosis of TBI in April 2004. Upon examination, a review of memory, attention, concentration, executive functions, showed a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Judgment was normal. Social interaction was occasionally inappropriate. The Veteran was found to be always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was noted to be mildly impaired. Specifically, the Veteran occasionally got lost in unfamiliar surroundings, and had difficulty reading maps or following directions. He was able to use assistive devices such as GPS. There were subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. Examples of this were mild or occasional headaches and mild anxiety. There were one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. Residuals attributable to the Veteran’s TBI were hearing loss and/or tinnitus, headaches, including migraine headaches, and mental disorder. It was noted that hearing loss would be tested and that the Veteran had continuing problems with pancreatitis. However, the pancreatitis was unrelated to TBI. In a December 2015 TBI VA examination, the Veteran reported daily headaches and migraines at least once weekly. He also reported problems with his short-term memory. Upon examination, a review of memory, attention, concentration, executive functions, showed a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Judgment was normal. Social interaction was occasionally inappropriate. The Veteran was found to be always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was noted to be mildly impaired. Specifically, the Veteran occasionally got lost in unfamiliar surroundings, and had difficulty reading maps or following directions. He was able to use assistive devices such as GPS. There were subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. Examples of this were mild or occasional headaches, mild anxiety. There were one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. Residuals attributable to the Veteran’s TBI was hearing loss and/or tinnitus, headaches, including migraine headaches, and mental disorder. Analysis The evidence of record, including July 2012 and December 2015 TBI VA examinations, does not show a level of impairment for any of the facets according to the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table of 2 or higher. The July 2012 VA examination showed that the Veteran had impairment of 1 for memory, attention, concentration, executive functions; for social interaction; for visual spatial orientation; for subjective symptoms; and for neurobehavioral effects. He had impairment of 0 for the remaining facets. The December 2015 examination revealed impairment of 1 for memory, attention, concentration, executive functions; for social interaction; for visual spatial orientation; for subjective symptoms; and for neurobehavioral effects. He had impairment of 0 for the remaining facets. The examinations showed subjective symptoms of service-connected hearing loss and tinnitus, and PTSD with MDD. Regarding subjective symptoms, the Board notes that the July 2012 VA examination noted headaches, including migraine headaches. The Board notes that there are two possible diagnostic codes that cover the Veteran’s headache disability: Codes 8045 and 8100 under 38 C.F.R. § 4.124a. Migraines (to include, by analogy, headaches) are rated under Code 8100. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is the highest rating available under this Code. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is assigned for characteristic prostrating attacks averaging one for every two months during the last several months. A noncompensable rating is assigned for less frequent prostrating attacks. 38 C.F.R. § 4.124a, Code 8100. In this case, the evidence of record does not show that the Veteran experiences prostrating attacks. In fact, the Veteran reported during the December 2015 headache VA examination that he did not experience prostrating attacks. As such, the Veteran would be entitled to a noncompensable rating under Diagnostic Code 8100. Alternatively, the Veteran’s headache disability may be rated under Diagnostic Code 8045, which governs the rating of the residuals of a TBI. The criteria for rating under Diagnostic Code 8045 are multifaceted, as discussed in detail above. The Veteran’s migraine headaches fall under the “subjective symptoms” facet for residuals of TBI. The medical evidence, primarily contained in the December 2015 VA examination report, reflects that the Veteran’s TBI residuals - headaches - are contemplated in the “subjective symptoms” facet. Each facet under the TBI rating code is assigned a level of impairment. 38 C.F.R. § 4.124a, Code 8045. As stated above, under the subjective symptoms facet, the level of impairment ranges from zero to 2. The criteria for a level of impairment of zero, which corresponds with a noncompensable rating, includes subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. Id. The criteria for a level of impairment of 1, which corresponds with a 10 percent rating, includes three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. Id. The criteria for a level of impairment of 2, which corresponds with a 40 percent rating, includes three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Id. The July 2012 and December 2015 TBI VA examinations reported subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. Examples of this were mild or occasional headaches, mild anxiety. Residuals of the Veteran’s TBI included hearing loss and/or tinnitus, mental disorder, and headaches, including migraines. Based on the foregoing, the Board notes that the medical evidence does not reflect the Veteran’s headaches are severe enough to warrant a level 2 impairment which would ultimately warrant the next highest rating (40 percent). There is no indication that the headaches require rest periods during most days. The overall evidence of record does not show symptoms warranting a rating in excess of 10 percent for TBI. The most pertinent evidence reviewed in reaching this decision includes the July 2012 and December 2015 VA examinations, as well as the VA records assembled in conjunction with this appeal. Consequently, as the highest level of impairment for any facet shown has been 1, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. A rating in excess of 50 percent prior to April 16, 2014, and in excess of 70 percent thereafter for PTSD with MDD. The Veteran claims entitlement to an increased disability rating for his service-connected PTSD, which he asserts is more severe than the 50 percent rating prior to April 16, 2014, and more severe than the 70 percent rating thereafter. A 50 percent rating is warranted for PTSD where 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 than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating for PTSD contemplates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating is warranted for PTSD resulting in 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. The evidence considered in determining the level of impairment under the Rating Schedule for PTSD is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The American Psychiatric Association has recommended that the use of Global Assessment of Functioning (GAF) scores be discontinued because these scores are unreliable. See Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) at 16 (abandoning the GAF scale due to its “conceptual lack of clarity”); see also Golden v. Shulkin, No. 16-1208, 2018 (Vet. App. Feb. 23, 2018) (explaining that the Board should not consider GAF scores when evaluating mental disorders rated using the DSM-5 criteria); 70 Fed. Reg. 45093 (Aug. 4, 2014) (formally adopting the DSM-5). Therefore, because of their inherent unreliability, the analysis in this decision does not consider any GAF scores in the Veteran’s record, considering only the symptoms experienced by the Veteran and the medical opinions that address those symptoms. Prior to April 16, 2014 In a July 2012 PTSD VA examination, the examiner noted that the Veteran had a PTSD diagnosis that conformed to DSM-IV criteria, as well as MDD. The examiner stated that the Veteran’s symptoms of re-experiencing trauma, arousal and avoidance was related to PTSD. His depressed mood, low interest, lethargy, lack of joy, guilt, low self-worth, thoughts of death, and diminished appetite were related to MDD. The examiner noted that the Veteran had TBI and that his concentration/attention problems were due to TBI rather than his mood disorder. The Veteran’s depressed mood was found to be less likely than not related to his TBI. The examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner said that the Veteran’s mood symptoms, PTSD and MDD appeared to impact his social functioning but not occupational or educational functioning. The concentration problems appeared related to TBI not mental health. It was noted that the Veteran was enrolled in college courses full time. The Veteran denied having any friends but acknowledged that he did not have a large network of friend prior to military enlistment and had struggled with low self-esteem throughout most of his life. He reported a closeness with his wife and his grandparents. The examiner noted that the Veteran was hospitalized for suicidal ideation with plan and intent while stationed at Fort Leonard Wood. The Veteran stated that he still did not want to be alive but could not commit suicide, and noted his wife and grandparents as protective factors. Symptoms associated with the Veteran’s PTSD included the following: depressed mood “unmotivated, down, guilty;” anxiety; panic attacks that occurred weekly or less often; chronic sleep impairment; flattened affect; and disturbances of motivation and mood. In a July 2012 VA treatment record, the Veteran said that he was a senior in college and planned to attend graduate school to obtain a Master’s Degree in athletic training. He reported suicidal ideation at times, but said he had no plan or intent. He said his family was his primary protective factor. He denied acute suicidal ideation, and flatly denied homicidal ideation. In a January 2013 VA treatment record, the Veteran complained of persistent difficulty with depression, anxiety, sleep and attention. He identified his mood as “not good.” He endorsed an increase in irritability with frequent escalation to yelling and at times physical aggression. There was no reported deterioration in self-care. He reported anhedonia. He interacted primarily with his wife and parents with minimal interaction with others. He also reported hypervigilance. His appetite was fair, but his sleep pattern was chronically disrupted by both hours of initial insomnia and awakenings triggered by nightmares. He said he had frequent intrusive, distressing recollections multiple times per day, as well as flashbacks periodically. He said he had a tendency to avoid driving because it triggered intense distress and memories related to his having been hit while driving on tour. He said he felt hopelessness and had suicidal ideation “all the time,” but denied active plan or intent, identifying his family as protective. He was noted as having a history of strong suicidal ideation with a plan to shoot himself after returning home in 2009. There was no evidence of delusions, and the Veteran denied hallucinations. It was noted that the Veteran had been married twice and had been married to his current wife for 2 years. He had a 6-year-old daughter with his first wife, but stated he did not have any contact with his daughter. Upon examination, the Veteran was able to engage appropriately and grooming and hygiene was appropriate. His affect was alert; blunted. His speech and thought process were normal. Signs of obsessive/compulsive behavior were absent. He was alert and oriented, but his concentration was poor based on the Veteran’s account of difficulty with attention and concentration. Memory and insight and judgment were noted to be good. With consideration of the entire record, the Board finds that the evidence more nearly approximates the criteria for the next higher disability rating of 70 percent prior to April 16, 2014. In that regard, the evidence shows that the Veteran experienced depression; irritable affect; sleep impairment; irritability with physical outbursts; short temper; social isolation with few, if any, friends; suicidal ideation; flattened affect; and panic attacks. Although not all of the criteria for a 70 percent rating have been shown, the criteria are simply guidelines for determining whether the Veteran meets the dominant criteria. The dominant criteria for a 70 percent evaluation are occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. In this case, the Board finds that the evidence of record demonstrates that this level of functional impairment was met prior to April 16, 2014. Accordingly, based on all the evidence of record, the manifestations of the Veteran’s psychiatric disability meet the criteria contemplated for a 70 percent evaluation under the provisions of Diagnostic Code 9411. From April 16, 2014 In an April 2014 VA treatment record, the Veteran reported depressive symptoms and suicidal ideation without a plan which was “baseline” for him since his discharge from service. He endorsed feelings of hopelessness, low self-esteem, insomnia, hypersomnia, and paranoia. He continued to experience nightmares, flashbacks, fear of crowds/avoidance of people, hypervigilance when driving, periodic anxiety that grew to panic, and periodic irritability. He denied homicidal ideation, hallucinations, delusions, mania or any other psychoses. Upon examination, the Veteran was noted to be well groomed with speech within normal limits. Mood was “okay,” and affect was restricted by improving. Thought process was linear, goal directed, and he denied hearing voices or seeing things. His insight and judgment were fair. The Veteran said he had a sense of belonging with his wife and had future plans to complete his education and work. In a December 2015 PTSD VA examination, the Veteran reported that he was living in his mother’s basement but not interacting with his family; he was not socializing. He was also not working or going to school and had no plans for work or school. The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was divorced and was not dating. Symptoms associated with the Veteran’s PTSD included the following: depressed mood; anxiety; panic attacks that occurred weekly or less often; chronic sleep impairment; flattened affect; 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. The examiner stated that the Veteran demonstrated no impairment of thought process or communication as well as delusions or hallucinations during the interview. His eye contact and interaction in the session were within normal limits. The Veteran endorsed an adequate history of maintaining minimal personal hygiene and other basic activities of daily living. He was oriented to person, place, and time. He denied significant memory loss or impairment, obsessive or ritualistic behaviors, and impaired impulse control. The rate and flow of the Veteran’s speech was within normal limits. In an April 2017 VA treatment note, it was noted that the Veteran lived with his girlfriend and they had 2 dogs and a cat. The Veteran reported he was close to his mother and stepfather. The Veteran said he was working on doing “some more active stuff,” and he slept about 4 to 6 hours per night. He said he was going to try to join the local gym. Upon examination, the Veteran was alert with good hygiene and neutral mood. His manner was sincere and thoughtful with some use of humor. There were no signs of psychosis or evidence of suicidal ideation. His basic reasoning was intact and he was well-organized. In a May 2017 VA treatment record, the Veteran was noted to be oriented, and concentration, attention, and memory were within normal limits. Thought content was appropriate and thought process was goal-oriented. Perception was noted to have no abnormalities reported or noted. Mood was depressed. Affect was constricted. Speech was normal. Judgment and insight were adequate. No problems were reported or noted regarding impulse control. The Veteran was highly motivated to participate in treatment. The Veteran denied homicidal thoughts as well as hallucinations or delusions, and there were no signs of preoccupied, paranoid, or obsessive thoughts. In a July 2017 VA treatment record, the Veteran reported to the emergency department for suicidal ideation. It was noted that in July 2013 the Veteran reported to a hospital reporting suicidal ideation. The Veteran was noted to be alert and oriented in no acute distress. In another July 2017 VA treatment record, the Veteran also reported worsening insomnia. In another July 2017 VA treatment record, the Veteran reported insomnia and visions at night related to his PTSD. As shown above, from April 16, 2014, the record reflects that the Veteran’s symptoms have not been consistent with total occupational and social impairment such that a 100 percent disability rating is warranted. The Veteran has not displayed gross impairment in thought process or communication, nor has the record shown that he is a persistent danger of hurting himself or others. The symptoms the Veteran experiences and displays cause severe impairment but do not rise to the level of causing total social and occupational impairment. The Veteran has been reported to have good hygiene. In addition, speech was within normal limits, he was alert and oriented, and judgment and insight were intact. Although, the Veteran reported “visions” at night in his July 2017 VA treatment record, the overall evidence of record shows that the Veteran generally denied hallucinations or delusions and there was no evidence of psychoses. The record as a whole shows that VA examiners and clinicians have consistently observed the Veteran to be alert and oriented, and with appropriate grooming and hygiene. Further, the Veteran has not displayed disorientation to time or place, or memory loss for names of close relatives, his prior occupations, or his own name or any other symptoms that resemble this level of severity. Accordingly, the Board finds that the Veteran’s PTSD symptoms most nearly approximate a 70 percent disability evaluation, and a 100 percent evaluation is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND TDIU prior to January 30, 2015 is remanded. On remand, after instituting the PTSD with MDD increase, the RO must readjudicate the Veteran’s TDIU claim. A VA opinion must be obtained, or an examination scheduled, if found necessary to determine the impact of the service-connected disabilities on the Veteran’s ability to obtain and maintain substantially gainful employment prior to January 30, 2015. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Thereafter, the RO should readjudicate the Veteran’s TDIU claim following instituting the increase of the Veteran’s disability rating for the Veteran’s PTSD with MDD from 50 percent to 70 percent prior to April 16, 2014. A VA opinion and/or VA examination should be obtained if deemed necessary, to determine the impact of the Veteran’s service-connected disabilities on the Veteran’s ability to obtain and maintain substantially gainful employment prior to January 30, 2015. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel