Citation Nr: 18150407 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-25 128A DATE: November 15, 2018 ORDER The reduction of the rating assigned to service-connected mild traumatic brain injury (TBI), from 10 percent disabling to noncompensably disabling, effective May 3, 2013, was improper; the rating is restored. A 100 percent schedular rating for service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, effective May 3, 2013, is granted. A total disability rating based on unemployability (TDIU) due to service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI alone, effective October 29, 2009, and up to May 3, 2013, is granted. Special monthly compensation (SMC) at the housebound rate, effective April 9, 2013 forward, is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected mild TBI is remanded. Special monthly compensation at the housebound rate, from October 29, 2009, to April 8, 2013, is remanded. FINDINGS OF FACT 1. The evidence used to reduce the rating assigned to the Veteran’s service-connected mild TBI, from 10 percent disabling to noncompensably disabling, effective May 3, 2013, did not show improvement that would be maintained under the ordinary conditions of life and work. 2. Effective May 3, 2013, there is evidence that the Veteran’s service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, was manifested by gross impairment in thought processes or communication and persistent delusions or hallucinations. 3. Effective October 29, 2009, the date of the Veteran’s claim, and up to May 3, 2013, the date upon which the Board herein grants a 100 percent schedular rating for service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, he met the percentage requirements for a schedular TDIU, and resolving all doubt in his favor, his service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI alone precluded him from securing or following a substantially gainful occupation. 4. As of April 9, 2013, the Veteran is in receipt of a total rating for his service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, and has additional service-connected disabilities independently ratable as 60 percent disabling. CONCLUSIONS OF LAW 1. The reduction of the rating assigned for service-connected mild TBI, from 10 percent disabling to noncompensably disabling, effective May 3, 2013, was not proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13, 4.124a; Diagnostic Code (DC) 8045. 2. Effective May 3, 2013, the criteria for a schedular rating of 100 percent for service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.126, 4.130, DC 9400. 3. Effective October 29, 2009, and up to May 3, 2013, the criteria for a TDIU due to the general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI alone were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.19. 4. Effective April 9, 2013, forward, the criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C. § 1114(s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active from June 1973 to January 1976. A brief recitation of the pertinent procedural history is warranted. In June 2010, the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for an anxiety disorder, panic attacks, and depression, rated as 70 percent disabling, and for mild TBI, rated as 10 percent disabling, each effective October 28, 2009. In June 2013, a Decision Review Officer (DRO) at the RO reduced the 10 percent rating assigned to mild TBI to noncompensable, effective May 3, 2013. In October 2014, the Veteran testified during a Travel Board hearing before the undersigned; a transcript of this hearing is of record. In October 2017, the Board remanded this case for additional development, including consideration of whether a separate, compensable rating was warranted for sensitivity around the teeth, as residuals of a service-connected nose injury/deviated septum. The file has now been returned to the Board for further consideration. In May 2018, the RO granted a 100 percent schedular rating for the Veteran’s service-connected anxiety disorder, panic disorder without agoraphobia, and depression, with mild TBI, effective November 29, 2017. At that time, the RO also granted service connection for left and right posttraumatic trigeminal neuropathy, claimed as sensitivity around teeth; thus, the issue of whether a separate, compensable rating was warranted for sensitivity around the teeth, as residuals of a service-connected nose injury/deviated septum, is no longer before the Board. Reduction A Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. As an initial matter, because the reduced evaluation of the Veteran’s mild TBI did not result in a reduction or discontinuance of compensation being made, the due process procedures set forth in 38 C.F.R. § 3.105 (e) do not apply. See 38 C.F.R. § 3.105 (e); VAOPGCPREC 71-91 (Nov. 1991). Also, at the time of the reduction, effective May 3, 2013, the 0 percent rating had been in effect for a period of less than five years, since October 29, 2009. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply and reexamination disclosing improvement would warrant a rating reduction. 38 C.F.R. § 3.344 (c). However, in Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). DC 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 these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. In June 2013, a DRO at the RO reduced the 10 percent rating assigned to mild TBI to noncompensable, effective May 3, 2013, explaining that the 10 percent rating was included within the 70 percent rating assigned for the Veteran’s service-connected psychiatric disorder, now characterized as an anxiety disorder, panic attacks, and depression, with mild TBI. On VA examination in January 2010, in pertinent part, the Veteran reported poor concentration, insomnia, anxiety, and ongoing moderate short-term memory loss since his in-service TBI, with trouble remembering names, addresses, and appointments. He was diagnosed with mild TBI with mild cognitive deficits; the examiner did note that the Veteran’s cognitive deficits were likely related to his anxiety disorder. In June 2010, the RO granted service connection for an anxiety disorder, panic attacks, and depression, rated as 70 percent disabling, and for mild TBI, rated as 10 percent disabling. The RO based the 10 percent rating for mild TBI on the evidence showing complaints of memory loss, poor concentration, insomnia, and anxiety, and mild cognitive deficits related to TBI, and the results from the tests conducted during his examination, as the highest level of severity under the diagnostic criteria for any facet of cognitive impairment and other residuals of TBI. On VA examination in February 2011, the Veteran reported poor memory and the examiner noted results of April 2010 VA neuropsychiatric evaluation revealing difficulties with attention and concentration and auditory memory. He was diagnosed with mild TBI with mild cognitive deficits; the examiner noted again that the Veteran’s cognitive deficits were likely related to his anxiety disorder. On VA examination of the Veteran’s TBI on May 3, 2013, the Veteran reported that his main complaint was poor memory and described using calendars, and the examiner reported that there had been overall improvement since the last evaluation. The examiner noted that there were no complaints of impairment of memory, attention, concentration, or executive functions. The examiner reported that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals of a TBI, and reported that there was no sequelae attributed to a mild in-service TBI. The examiner reported that the Veteran’s anxiety disorder is most likely the primary cause of the Veteran’s subjective neurobehavioral complaints. On VA examination of the Veteran’s psychiatric disability on May 3, 2013, the examiner reported that it was not possible to separate his TBI and psychiatric symptoms without resorting to mere speculation due to the nature of combining symptoms. In its June 2013 rating decision which reduced the rating assigned to the Veteran’s service-connected mild TBI, effective May 3, 2013, from 10 percent disabling to noncompensably disabling, the DRO reported that current and past VA examinations did not clearly show separate and distinct TBI residuals apart from the service-connected psychiatric disability. The DRO noted that the examiner on May 3, 3013, reported that it was not possible to separate TBI and psychiatric symptoms without reporting to mere speculation, and current test results did not support a diagnosis of cognitive disorder and did not provide objective evidence consistent with residuals of TBI. The DRO did not report that there was any clear and unmistakable error (CUE) in the June 2010 rating decision which granted service connection for mild TBI and assigned the same an initial 10 percent rating for complaints of memory loss, poor concentration, insomnia, and anxiety, and mild cognitive deficits related to TBI, and the results from the tests conducted during his examination, as the highest level of severity under the diagnostic criteria for any facet of cognitive impairment and other residuals of TBI. During his September 2014 Board hearing, the Veteran asserted that during every job they called him stupid, and that he takes notes down, and uses notes over notes to try to remember things. He reported that walked away from jobs without finishing them, and that he got fired because he could not remember anything or finish tasks fast enough. He complained of sleep disturbances. On VA examination in August 2016, the Veteran was diagnosed with TBI, with objective evidence of mild impairment of memory, attention, concentration, and executive functions, resulting in mild functional impairment. The examiner reported that there were mild cognitive deficits on objective testing, but performance was influenced by anxiety, and anxiety disorder was the primary diagnosis. The examiner reported that it was not possible to separate TBI and psychiatric symptoms without resorting to mere speculation, and that the Veteran’s cognitive effects would impair tasks that require mental multitasking or rapid processing. In a May 2017 statement, the Veteran reported that he could not remember anything, even what he was just told, and that he had trouble focusing on the simplest things. He complained that he could not focus; that he had special alarms on his phone for appointments. He reported that he changed the subject in the middle of conversations. He noted that he had asked his landlord to call him monthly to remind him to pay the rent, and that she asked for a doctor’s letter as to the need for such. He asserted that he was fired from almost every job because he could not remember things and could not complete things. In a May 2017 statement, one of the Veteran’s friends reported that he had known the Veteran for seven years and that he had memory and concentration problems, and seemed “really screwed up in his brain.” He reported that the Veteran could not remember things, and needed a navigational device to get to his house, even though he had visited many times. He reported that the Veteran could not remember some friend’s names and changed the subject of a conversation and lost focus. He described how the Veteran “messed up” a project on which they were working. On VA examination in November 2017, the Veteran was diagnosed with TBI and mild cognitive disorder, and he complained of ongoing insomnia, moderate memory loss, and difficulty concentrating in general, with anxiety. The examiner reported that the Veteran had significant word-finding difficulties and impairment with processing directions and instructions. The examiner reported that the Veteran’s residual mild cognitive deficits were likely related to his anxiety disorder and sleep apnea, with a lesser contribution from TBI. On review of this evidence, although the examiner, on May 3, 2013, reported that there had been overall improvement since the Veteran’s last evaluation, it remains that the Veteran presented for that examination and reported that his main complaint was poor memory. While the Veteran described using calendars, possibly a coping device, it does not appear, and the examiner did not specifically report, that the Veteran’s memory, or any of the any symptoms used by the RO in its June 2010 assignment of a 10 percent rating for mild TBI, poor concentration, insomnia, and anxiety, had improved. It is significant that when the Veteran reported that his main complaint was poor memory, the examiner noted that there were no complaints of impairment of memory, attention, concentration, or executive functions, and that there were no subjective symptoms or any mental, physical, or neurological conditions or residuals of a TBI, or any sequelae attributed to a mild in-service TBI. The examiner did not make any finding that the Veteran did not have subjective or objective memory loss. It is significant that the Veteran and his friend, in May 2017, after the June 2013decision that reduced the rating assigned to his mild TBI, provided statements describing the severity of his memory loss. It is also significant that the VA examiners, in August 2016 and November 2017, found objective evidence of mild impairment of memory, attention, concentration, and executive functions, resulting in mild functional impairment, and mild cognitive disorder, with complaints of ongoing insomnia, moderate memory loss, and difficulty concentrating in general, with anxiety, respectively. The Board concludes that, at that the time of the reduction, in the June 2013 rating decision, the preponderance of the evidence did not show ascertainable improvement of the Veteran’s symptoms, specifically, his memory loss, that reflected an improvement in his ability to function under the ordinary conditions of life. As noted above, the Veteran reported, on VA examination on May 3, 2013, that his main complaint was poor memory, and the examiner still noted that there were no complaints of impairment of memory, attention, concentration, or executive functions, and that there were no subjective symptoms or any mental, physical, or neurological conditions or residuals of a TBI, or any sequelae attributed to a mild in-service TBI. The lay and medical evidence dated after the June 2013 rating decision indicates, as discussed above, that the Veteran’s symptoms were reported or recorded in the same manner as they were prior to the May 3, 2013, VA examination that gave rise to the June 2013 rating decision. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the reduction of the rating assigned to his service-connected mild TBI, from 10 percent disabling to noncompensably disabling, effective May 3, 2013, was not proper because any improvement that occurred or was reported did not reflect improvement in the ability to function in the ordinary course of work and life. As such, the 10 percent rating for service-connected mild TBI is restored, effective May 3, 2013, the date of the reduction.   Increased Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a). A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The record before the Board contains voluminous post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.). The Board has considered the Veteran’s claims and decided entitlement based on the evidence. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 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). Entitlement to an initial rating for service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, in excess of 70 percent, prior to November 29, 2017. The Veteran’s general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI is rated pursuant to 38 C.F.R. § 4.130, DC 9400. By a June 2010 rating decision, the RO granted service connection and assigned the same an initial 70 percent rating, effective October 29, 2009. By a DRO’s May 2018 decision, the rating was increased to 100 percent, effective November 29, 2017. Under DC 9400, in pertinent part, a 70 percent rating is warranted for PTSD when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted for PTSD if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). Id. at 443; see 38 C.F.R. § 4.130. (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has amended certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board. Id.) If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. On VA neuropsychological evaluation in April 2010, the Veteran reported that he was living in his car since his unemployment. He denied seizures, reporting that he had not had such since service, when anxiety caused seizures. He was not in a relationship and had not dated for many years. He was not currently working and was trying to find job, having last worked in 2009 in maintenance. He reported that he was fired and not given a reason, however, his boss asked him if he had problems with his memory. He reported current treatment, with medication, for panic disorder, and the examiner noted that no cognitive difficulties were of record. The examiner reported that magnetic resonance imaging (MRI) revealed degenerative change. Mental status examination was unremarkable, save for the Veteran being relatively challenging at times and challenged in the test-taking process, with significant anxiety and worry affecting his performance. There were no signs of major psychopathology and no delusions, hallucinations, or preoccupations, his affect was agitated and his mood was anxious, he was distracted on testing, and his learning and memory were somewhat variable. He was diagnosed with panic disorder, with mild difficulties with concentration and attention, as well as auditory memory. On VA examination in February 2011, the Veteran reported that he was no longer living in his car. The examiner reported that the Veteran, several times during the session, behaved as if he was having significant memory problems. He reported that he last dated in 1997 and that the relationship lasted five years. He reported that he was relatively active socially and went to church multiple times a week and saw friends approximately once a week to watch sports or visit. He reported that he was not currently working, that his last job was as a property manager where his memory was questioned, and that he gets stressed during interviews which gives him an unusual appearance. The examiner noted current treatment, with medication. The Veteran reported that he experiences periods of anxiety once per month, with a sensation of a rush to his head and a strange electrical-type smell. He complained of memory difficulties. Mental status examination was unremarkable, save for the Veteran providing information with prompting and many times inconsistent with the record; the examiner reported that his reliability was low. There were no signs of major psychopathology and no delusions, hallucinations, or preoccupations, his affect was mildly agitated and his mood was mildly anxious. He behaved as if his attention was moderately to severely disrupted and as if his memory was mildly disrupted. He was diagnosed with panic disorder, without agoraphobia. On VA examination on May 3, 2013, the Veteran was diagnosed with generalized anxiety and depressive disorder, and the examiner reported that he could attribute specific symptoms to each disorder. He reported that the symptoms attributed to the Veteran’s anxiety disorder were restlessness, feeling keyed up or on edge, being easily fatigued, difficulty concentrating, irritability, muscle tension, sleep disturbance, excessive worrying, difficulty controlling the worrying, and that the symptoms attributed to his depressive disorder were depressed mood, anhedonia, significant weight gain, insomnia, fatigue and/or loss of energy, feelings of worthlessness, and the diminished ability to think or concentrate. The examiner reported that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. The Veteran reported that he had friends from church, that he was unemployed, and that he had current treatment, with medication. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, impairment of short and long memory, gross impairment in thought processes and communication, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work, and persistent delusions or hallucinations, described as auditory hallucinations of muffled noise. During his September 2014 Board hearing, the Veteran reported, of his psychiatric disability, that he was very frustrated, that he “makes a total ass out of myself all the time, saying stupid stuff.” He reported that he lost his wife and daughter due to his symptoms, and reported that his daughter will speak to him as long as he can “stay appropriate.” He asserted that during every job they called him stupid, and that he takes notes down, and uses notes over notes, to try to remember things. He reported that walked away from jobs without finishing them, and that he got fired because he could not remember anything or finish tasks fast enough. He complained of sleep disturbance, and reported that while VA examiners have noted an active social life, his friends come over to check on him when he does not turn his phone on, and that he only goes to church and goes out to eat. He reported that he felt like a “walking zombie,” and that he did not feel functional. On VA examination in August 2016, the Veteran complained of panic attacks, once or twice each month, associated with a racing pulse, sweating, trembling, and a flushed face, and reported that he had fear and anxiety over having more attacks such that he avoided stressful social situations. He complained of worrying, daily anxiety, being easily fatigued, having difficulty concentrating, irritability, muscle tension, and sleep disturbance. He reported that he had limited contact with his daughter and had one possible new friend, with no established friendships. He reported that went to church weekly, that his social support was limited, and that he isolated and withdrew. He reported that he had been fired on ten or twenty occasions due to making careless mistakes secondary to memory problems. The examiner reported that the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, impairment of short and long-term memory, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work. His affect was constricted and his mood was anxious. Based on the lay and clinical evidence of record, the Board finds that effective May 3, 2013, prior to the date upon which the RO, in May 2018, granted a 100 percent rating, effective November 29, 2017, the Veteran’s service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, was manifested by gross impairment in thought processes or communication and persistent delusions or hallucinations, warranting a 100 percent rating. 38 C.F.R. § 4.130, DC 9400. There is no evidence, however, that prior to May 3, 2013, the Veteran’s service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI, was manifested by gross impairment in thought processes or communication and persistent delusions or hallucinations, or other symptoms contemplated by the rating criteria for a 100 percent rating, or symptoms of the same type and degree, such as 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9400; Mauerhan, 16 Vet. App. at 443. The Board thus finds that the Veteran’s disability picture related to his service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI warrants a 100 percent schedular rating, effective May 3, 2013. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9400. Entitlement to a TDIU; and Entitlement to SMC at the housebound rate. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations place the responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16 (a)). As of October 29, 2009, the Veteran’s combined rating was 70 percent, and he was in receipt of a 70 percent rating for his service-connected psychiatric disorder and a 10 percent rating for his service-connected mild TBI. He thus met the percentage requirements for a TDIU at that time, as he had at least one ratable disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Board finds a basis upon which to grant a TDIU based on Veteran’s service-connected psychiatric disability alone, effective October 29, 2009, the date of his claim of entitlement to a TDIU, and up to May 3, 2013, the date upon which the Board has granted herein a 100 percent schedular rating to the Veteran’s service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI. While the Board herein grants a TDIU based on the Veteran’s psychiatric disorder alone from October 29, 2009, to May 3, 2013, the Board has reviewed the entirety of the lay and medical evidence, as such speaks to the Veteran’s employment history and long-term symptoms and ability to work. The Veteran filed a November 2010 Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, indicating that he last worked in August 2008, and he was unemployable due to, in part, his psychiatric disability. Of record are a number of VA Forms 21-4192, Request for Employment Information in Connection with Claim for Benefits, however, no response indicates that the Veteran was terminated due to his psychiatric disability. On VA neuropsychiatric evaluation in April 2010, the Veteran reported that he was not currently working and trying to find job, that he last worked in 2009 in maintenance, and was fired, without reason, however, he asserted that his boss asked him if he had trouble with his memory. He was distracted on testing, and his learning and memory were somewhat variable. He was diagnosed with panic disorder, with mild difficulties with concentration and attention, as well as auditory memory. In an October 2010 VA Rehabilitation Needs Inventory (RNI), the Veteran reported that his job difficulties included being unable to think, remember, stay focused, perform duties assigned to him, or understand what people were saying. He complained of memory problems and severe nightmares. On VA examination in February 2011, the examiner reported that the Veteran was not unemployable based on his anxiety, as he was capable of working a job that is sedentary and loosely supervised and requires little interaction with the public. The examiner reported that there were anxiety symptoms that caused reduced reliability and productivity. On VA examination in May 2013, the examiner reported that the Veteran’s symptoms were moderate in terms of occupational functioning, and his was thus not considered unemployable and he would be a candidate for vocational rehabilitation to include options for sedentary work with limited interaction with the public or loose supervision. During his September 2014 Board hearing, the Veteran asserted that he last worked in 2008, doing apartment maintenance and labor jobs. He asserted that during every job they called him stupid, and that he takes notes down, and uses notes over notes, to try to remember things. He reported that walked away from jobs without finishing them, and that he got fired because he could not remember anything or finish tasks fast enough. On VA examination in August 2016, the examiner reported that the Veteran’s psychiatric disability caused severe occupational impairment. In a May 2017 statement, the Veteran reported that he could not remember anything, even what he was just told, and that he had trouble focusing on the simplest things. He complained that he could not focus; that he had special alarms on his phone for appointments. He reported that he changed the subject in the middle of conversations. He noted that he had asked his landlord to call him monthly to remind him to pay the rent, and that she asked for a doctor’s letter as to the need for such. He asserted that he was fired from almost every job because he could not remember things and could not complete things. In a May 2017 statement, one of the Veteran’s friends reported that he had known the Veteran for seven years and he had memory and concentration problems, and that he seemed “really screwed up in his brain.” He reported that the Veteran could not remember things, and needed a navigational device to get to his house, even though he had visited many times. He reported that the Veteran could not remember some friends names and changed the subject of a conversation and lost focus. He described how the Veteran “messed up” a project on which they were working. On VA examination in November 2017, the examiner reported that the Veteran had near continuous panic or depression affecting his ability to function independently, appropriately, and effectively. The examiner reported that the Veteran would have difficulty understanding and remembering instructions due to cognitive issues related to anxiety, and he would have difficulty sustaining attention needed for job task completion related to cognitive issues related to anxiety. In a May 2018 private opinion, the examiner, based on review of the claims file, opined that the Veteran had been unemployable due to his psychiatric disability since 2009. She reasoned that the Veteran relies on various forms of medication for symptom control of his psychiatric disability and his prescribed medications cause symptoms of drowsiness and fatigue, which further hinder his ability to become employed and maintain employment due to the medication’s sedative and impaired judgment effects. She also reasoned that the Veteran’s psychiatric disability caused insomnia, a fact not in dispute, and he has nightmares; and that it is a well-documented clinical phenomenon that sleep deprivation causes concentration and other problems and the Veteran has continually suffers from poor sleep, focus, concentration, and memory problems. She cited much of the medical and lay evidence discussed above, specifically, the contents of the May 2017 statement from the Veteran as to his memory problems, needing to set alarms, and having been fired from jobs because he could not remember things and could not complete things. She cited the May 2017 statement of the Veteran’s friend as to his changing subjects in conversations, using a navigational device to travel to places he had been many times, and his losing track of things. She cited the results of the April 2010 VA neuropsychiatric evaluation wherein anxiety affected his ability to perform testing and his diagnosed difficulties with concentration and attention, as well as auditory memory, reports of VA examinations finding near continuous panic or depression affecting his ability to function independently, appropriately, and effectively, and severe occupational impairment, as well as the October 2010 VA RNI indicating his problems with focus, concentration, memory, and nightmares. Based on the above, specifically, the May 2018 private opinion which considered and cited the pertinent medical and lay evidence during the entire appellate period, the Bord finds that the Veteran’s service-connected general anxiety disorder, panic disorder without agoraphobia, with depression and mild TBI alone precluded him from securing or following a substantially gainful occupation. Significantly, there is no evidence, as distinguished from mere conjecture, that the Veteran’s service-connected psychiatric disability did not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia, 7 Vet. App. 294. While some VA examiners, those in February 2011 and May 2013, have opined that the Veteran was not unemployable based on his psychiatric disability, as he is capable of working a job that is sedentary and loosely supervised and requires little interaction with the public, neither examiner reported how the Veteran’s medication regimen used to treat his psychiatric disability, his sleep disturbance, and his difficulties with focus, attention, and memory would not prevent employment with interaction with the public or loosely supervised employment. The standard for entitlement to TDIU does not require 100 percent unemployability, but rather a more flexible determination as to whether service-connected disability alone prevents substantially gainful employment. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Board finds, resolving all doubt in favor of the Veteran, that this standard is satisfied and a TDIU is granted, effective October 29, 2009, and up to May 3, 2013. 38 U.S.C. § 5107(b). In light of the Board’s decision herein, effective October 29, 2009, the Veteran is granted a TDIU based on his psychiatric disability alone, and effective, May 3, 2013, he is granted a 100 percent schedular rating for his service-connected psychiatric disability. The Veteran does not assert, nor does the evidence show, that he was unemployable due solely to his service-connected hearing loss, tinnitus, TBI, residuals of a nose injury, and left and right posttraumatic trigeminal neuropathy at any time during the appellate period such that a TDIU would be warranted based upon any and/or all of these disabilities, separate and apart from his psychiatric disorder. See 38 C.F.R. § 4.16. Apart from his psychiatric disorder which is the basis of his total disability rating (either as the basis of the TDIU or on a schedular basis) as of October 29, 2009, the Veteran has additional service-connected disabilities independently ratable as 60 percent disabling from April 9, 2013, forward. Accordingly, special monthly compensation at the housebound rate is warranted as of April 9, 2013. 38 U.S.C. § 1114(s). The issue of SMC at the housebound rate prior to April 9, 2013, is dependent upon the outcome of the Veteran’s claim for an increased rating for his mild TBI, which is addressed in the remand below. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for service-connected mild TBI. SMC at the housebound rate prior to April 9, 2013. The Board, in its October 2017 Remand, considered the May 2017 statement of the Veteran’s attorney asserting that the August 2016 VA examination did not adequately evaluate the severity of the Veteran’s residuals of a TBI and that his history of seizures was not discussed. The attorney, in the May 2017 statement, asserted that the Veteran, on VA examination in August 2016, was not given any tests and his lay reports were not recorded. The Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran an appropriate VA examination, one that addresses each of the Veteran’s subjective complaints asserted to be related to his TBI, to include headaches, vision problems, and any seizures, and determine whether they are residuals of his TBI. On VA examination in November 2017, the examiner diagnosed the Veteran with TBI and mild cognitive disorder. The Veteran reported seizures since his in-service event giving rise to TBI, and denied headaches. He complained of ongoing photophobia, without phonophobia, intermittent paresthesia and pain over the face, lightheadedness, which appeared to be correlated with anxiety attacks, and blackouts, sometimes with generalized body shaking and incontinence. He denied weakness or paralysis due to TBI, and reported left arm trauma in 2008 and complained that his left arm felt colder than his right arm. He complained of bowel and bladder incontinence due to not being able to make it to the restroom during anxiety attacks, with urinary urgency and frequency, ongoing insomnia, severe fatigue and malaise, and denied mobility or balance difficulties, and endocrine or autonomic difficulties. He complained of moderate memory loss, difficulty concentrating in general, with anxiety often contributing to such. He demonstrated significant word-finding difficulties and impairment with processing directions and instructions. He complained of psychiatric symptoms, dysphagia for solids, occasional stuttering with anxiety, a gradual decline of taste and smell, floaters in eyes, and anxiety, associated with loss of consciousness, and shaking and jerking in the past. When the examiner was asked if the Veteran had any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to TBI, the examiner responded in the affirmative and described such as a mental disorder, a mild cognitive disorder due in smaller part to TBI and due in larger part to anxiety disorder. The examiner reported that present physical examination revealed left upper extremity weakness and sensory loss, most likely due to the brachial plexus injury. The examiner noted that the Veteran was evaluated by VA neurology in the 1990s and tests were negative for negative for epileptic seizures. The examiner cited a December 2009 VA ophthalmology evaluation and a number of VA treatment records for musculoskeletal, psychiatric, and audiological complaints. He cited results of the April 2010 neuropsychiatric evaluation showing mild deficits in attention and concentration as well as auditory memory, and the April VA MRI, silent for focal areas of encephalomalacia to clearly indicate a severe TBI, as well as a 1996 VA electroencephalography (EEG) demonstrating that his spells were non-epileptic in nature. The examiner concluded that the overall clinical history, brain imaging, and neuropsychiatric evaluation do support the incidence of mild TBI in service, with residual mild cognitive deficits. However, he reported that such deficits were likely related to anxiety disorder and sleep apnea, with a lesser contribution from TBI. In an April 2018 addendum, the examiner reported that the Veteran does not have any headaches, vision problems, or seizures related to TBI, and that he denied headaches during his November 2017 VA examination. The examiner reported that the Veteran’s facial pain was due to posttraumatic trigeminal neuropathy and is not a headache or a TBI residual, and that his episodes of lightheadedness and anxiety with loss of consciousness in the past were shown not to be seizures by previous evaluations and are consistent with syncope or psychogenic non-epileptic spells which are not related to his TBI. The examiner reported that the cause for his subjective photophobia is unknown, but such is nonspecific and less likely related to TBI. The examiner reported that the Veteran did not have an actual visual disorder related to TBI. Additional medical queries remain. The Veteran’s attorney argued, in her May 2017 statement, that the August 2016 VA examination was inadequate, in part, because no tests were conducted. No tests were conducted during the November 2017 VA examination, and the examiner cited and relied upon testing results dated many years prior. Also, the examiner has reported that the Veteran’s episodes of lightheadedness and anxiety with loss of consciousness in the past were shown not to be seizures by previous evaluations and are consistent with syncope or psychogenic non-epileptic spells which are not related to his TBI. It appears that he based his opinion on a 1996 VA EEG. During the Veteran’s September 2014 Board hearing, he asserted that he was taking anti-seizure medication prescribed by VA. In a May 2017 statement, the Veteran reported that he was taking medication to prevent full-blown seizures. The Veteran’s former representative, during the September 2014 Board hearing, asserted that a VA MRI had shown lesions on the brain. A VA examiner, in April 2010, reported that a VA MRI revealed degenerative change. The issue of whether or not the Veteran experiences seizures or takes medication prescribed by VA to prevent such, or whether there is further degenerative shown on MRI, remains unclear. While the examiner reported that the Veteran had TBI with residual mild cognitive deficits, even though he also reported that such deficits were likely related to anxiety disorder and sleep apnea, with a lesser contribution from TBI, it remains unclear the precise nature of the cognitive deficits found. The Board is not able to determine, with the current medical evidence of record, the appropriate rating for the Veteran’s mild TBI, considering any issues with symptoms of his mild TBI and psychiatric disability that are not duplicative or overlapping. On remand, the AOJ should afford the Veteran a complete VA examination of his service-connected TBI, including all indicated tests and studies, in order to precisely evaluate the current severity of the same. The most recent VA treatment records associated with the claims file are dated in April 2018, and on remand, the AOJ should obtain the Veteran’s updated VA treatment records. The issue of SMC at the housebound rate prior to April 9, 2013 is deferred, pending adjudication of the claim for a higher rating for the TBI. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. 2. Then, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected mild TBI. (a) All indicated tests and studies must be conducted. (b) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, specifically, the examiner should clearly describe the Veteran’s mild cognitive impairment found on VA examination in November 2017, or any such impairment found presently. To the extent possible, the examiner should identify any symptoms and functional impairments due to service-connected mild TBI alone and discuss the effect of such on any occupational functioning and activities of daily living. (c) The examiner should specifically review the medication lists in the Veteran’s VA treatment records and report if the Veteran is taking, or has been taking, medication prescribed by VA to prevent or control seizures. (Continued on the next page)   (d) The examiner should specifically review the results of the April 2010 MRI showing degeneration and current results of MRI and report if there is further degenerative shown, and if any degeneration results in symptoms related to TBI. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Purdum