Citation Nr: 18151171 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 10-17 556 DATE: November 16, 2018 ORDER A separate 70 percent disability rating, but not higher, for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), previously diagnosed as anxiety reaction, from October 24, 2007, to April 21, 2009, is granted, subject to the laws and regulations governing the payment of monetary benefits. A 70 percent disability rating, but not higher, for the service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – from April 22, 2009, to June 12, 2017, is granted, subject to the laws and regulations governing the payment of monetary benefits. A disability rating in excess of 70 percent for the service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – since June 13, 2017, is denied. A disability rating in excess of 10 percent for subjective physical symptoms of a traumatic brain injury (TBI) is denied. A total disability rating based on individual unemployability (TDIU) since October 24, 2007, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The evidence in equipoise as to whether the service-connected acquired psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control and difficulty in adapting to stressful circumstances (including work or a worklike setting) from October 24, 2008, to April 21, 2009. 2. The weight of evidence shows that the service-connected acquired psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, underwent an increase in severity in the one-year period prior to October 24, 2008. 3. The evidence is in equipoise as to whether the service-connected acquired psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control and difficulty in adapting to stressful circumstances (including work or a worklike setting) from October 24, 2007, to October 23, 2008. 4. The evidence is equipoise as to whether the service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control and difficulty in adapting to stressful circumstances (including work or a worklike setting) from April 22, 2009, to June 12, 2017. 5. The weight of evidence is against a finding that service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – has been manifested by a total occupational and social impairment since October 24, 2007, or by total impairment as to memory, attention, concentration, and executive functions; judgment; orientation; visual spatial orientation; communication; or consciousness since October 23, 2008. 6. The Veteran has been receiving the maximum schedular rating for subjective symptoms of TBI under the old rating criteria in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 7. The weight of evidence is against a finding that the Veteran has or has had multi-infarct dementia associated with brain trauma during the appeal period. 8. The weight of evidence shows that the subjective physical symptoms of TBI have not been manifested by three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships since October 23, 2008. 9. From October 24, 2007, to April 21, 2009, the Veteran was service connected for the following disabilities: an acquired psychiatric disorder, previously diagnosed as anxiety reaction; subjective physical symptoms of TBI; a left eye scar; and right knee arthralgia. 10. From October 24, 2007, to March 31, 2009, these service-connected disabilities were rated as 70 percent disabling with the psychiatric disorder being rated 70 percent disabling. 11. From April 1, 2009, to April 21, 2009, these service-connected disabilities were rated as 80 percent disabling with the psychiatric disorder being rated 70 percent disabling. 12. The weight of evidence shows that the Veteran’s part-time employment since October 24, 2007, has been marginal employment. 13. The evidence is in equipoise as to whether the Veteran’s service-connected psychiatric disorder and subjective physical symptoms of TBI rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from October 24, 2007, to April 21, 2009. 14. Since April 22, 2009, the Veteran has been service connected for the following disabilities: an acquired psychiatric disorder (to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI); subjective physical symptoms of TBI; a left eye scar; and right knee arthralgia. 15. Since April 22, 2009, these service-connected disabilities have been rated 80 percent disabling with the psychiatric disorder being rated 70 percent disabling. 16. The evidence is in equipoise as to whether the Veteran’s service-connected psychiatric disorder and subjective physical symptoms of TBI have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since April 22, 2009. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 70 percent disability rating for an acquired psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, from October 24, 2007, to April 21, 2009, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.130, Diagnostic Code 9413 (2017). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 70 percent disability rating for an acquired psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – from April 22, 2009, to June 12, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a disability rating in excess of 70 percent for an acquired psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – since June 13, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.130, Diagnostic Code 9411. 4. The criteria for a disability rating in excess of 10 percent for subjective symptoms of TBI have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Code 8045 (2017); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007). 5. The criteria for TDIU since October 24, 2007, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to March 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2009 (denial of increased rating for TBI) and March 2010 (grant of service connection for PTSD) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the electronic claims file. In January 2013 and August 2015, the Board remanded the issues of increased ratings for PTSD and TBI and the issue of TDIU. In an August 2018 rating decision, the RO assigned a 70 percent disability rating for PTSD effective June 13, 2017. As the increased disability rating is not the maximum rating available for this disability, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In a June 2014 VA Form 9 that did not perfect an appeal of an issue, the Veteran requested another videoconference Board hearing. In a June 2014 statement, the Veteran’s former counsel noted this request. In an August 2018 statement to the RO, the Veteran’s current counsel noted that the Veteran did not want a hearing. Regardless of whether the current counsel’s statement is a withdrawal of the request for another videoconference Board hearing, there is no indication that additional testimony from the Veteran is necessary before the Board adjudicates his claims. Therefore, his motion for another videoconference Board hearing is denied. In an August 9, 2018, supplemental statement of the case, the RO informed the Veteran and his counsel that they had 30 days to respond with additional comment or evidence. In an August 30, 2018, statement, the counsel requested that 90 days to respond. As the counsel did not submit evidence within 30 days of the August 9, 2018, supplemental statement of the case, the RO certified the appeal to the Board in October 2018. In an August 18, 2018, letter to the Veteran with a copy sent to his counsel, the Board informed the Veteran that he had 90 days from the date of the letter or until the Board issues a decision, whichever comes first, to submit any additional evidence. The counsel has not submitted any evidence to the Board. Increased Rating VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his counsel have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to a separate compensable rating for an acquired psychiatric disorder other than posttraumatic stress disorder prior to October 2. Entitlement to a disability rating in excess of 50 percent disability rating for the service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – since April 22, 2009 3. A disability rating in excess of 70 percent for the service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – since June 13, 2017 4. Entitlement to a disability rating in excess of 10 percent for subjective physical symptoms of TBI Governing law and regulations PTSD, anxiety disorder not otherwise specified, mood disorder due to a general medical condition, and cognitive disorder due to TBI are evaluated under the general rating formula for mental disorders. Under those criteria, a 50 percent rating is assigned for 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is assigned for 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In April 2010, the RO certified the appeal to the Board and as such, these claims are governed by DSM-IV. Global assessment of functioning (GAF) scores are assigned based on a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing the DSM-IV, p. 32). A GAF score from 90 to 81 indicates absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, and no more than everyday problems or concerns (e.g., an occasional argument with family members). A GAF score from 60 to 51 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, unable to keep a job). See 38 C.F.R. § 4.130 (2014) (incorporating by reference the VA’s adoption of the DSM-IV, for rating purposes). The Veteran filed his claim for an increased rating for post-concussive syndrome with anxiety reaction on October 24, 2008. Effective October 23, 2008, the day before the date of claim, VA amended rating criteria for evaluating TBI. 73 Fed. Reg. 54,693(2008). A March 2010 statement of the case reflects that the RO considered the disability under both the old and new criteria for rating TBI. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Therefore, the Board will consider the Veteran’s claim under the old criteria from October 24, 2007, to October 22, 2008, and under the new criteria from October 23, 2008. Under the old criteria, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007). Purely subjective complaints such as headaches, dizziness, insomnia, etc., which are recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Id. Under the current criteria, there are three main areas of dysfunction listed 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, 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 to be 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. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are to be evaluated 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. Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings--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. Physical (including neurological) dysfunction is to be evaluated 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 here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations 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 disability evaluations. 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 a 5th level, 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. A 100-percent evaluation should be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation 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 evaluation if 3 is the highest level of evaluation for any facet. Id. The 10 important facets in the table of “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” are as follows: (1) Memory, attention, concentration, executive functions; (2) Judgment; (3) Social interaction; (4) Orientation; (5) Motor activity; (6) Visual spatial orientation; (7) Subjective symptoms; (8) Neurobehavioral effects; (9) Communication; and (10) Consciousness. Id. Note (1): 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 evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation 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 evaluation for each condition. Id. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note (3): “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. These 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. Note (4): 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. This classification does not affect the rating assigned under diagnostic code 8045. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For subjective symptoms, the criteria for a “0” level of impairment are subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples include mild or occasional headaches or mild anxiety. The criteria for a “1” level of impairment are three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples include intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. The criteria for a “2” level of impairment are three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples include marked fatigability, blurred or double vision, and headaches requiring rest periods during most days. The record on appeal demonstrates that, in addition to residuals of TBI, an anxiety disorder not otherwise specified, a mood disorder due to general medical condition (TBI), cognitive disorder due to TBI, PTSD, and alcohol use disorder. The Board, however, is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). A January 2014 VA examiner stated that it is not possible to differentiate what portion of the occupational and social impairment is caused by TBI and what portion is caused by PTSD. The examiner noted that the symptoms of TBI and PTSD often overlap and that symptoms of TBI are also commonly associated with PTSD. A June 2017 VA examiner identified a mental disorder (including emotional, behavioral, or cognitive) as a residual of TBI. That examiner stated that it is not possible to determine if the Veteran’s deficits are due to residuals of TBI, the natural aging process, or daily alcohol use. The examiner indicated that all three are likely contributing factors. There are diagnoses of mental disorders as a residual of TBI. The medical evidence shows overlap between the cognitive impairment and all emotional and behavioral symptoms of TBI with PTSD, alcohol use disorder, and the previously diagnosed anxiety disorder not otherwise specified. The manifestations are not clearly separable. See also 38 C.F.R. § 4.19. Therefore, more than one evaluation cannot be assigned based on the same manifestations of cognitive impairment and all emotional and behavioral symptoms due to TBI and due to PTSD, alcohol use disorder, and the previously diagnosed anxiety disorder not otherwise specified. Since the psychiatric disorder will be rated as 70 percent disabling since October 24, 2007, the Board will determine whether the cognitive impairment and all emotional and behavior symptoms warrant a total level, a 100 percent rating As for memory, attention, concentration, and executive functions, a “total” level is warranted for objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. As for judgment, for a “total” level, judgement must be severely impaired. Such impairment is manifested by following: for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives; understand the consequences of choices; and make reasonable decisions. For example, the person is unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. For orientation, a “total” level requires consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. As to motor activity, a and a “total” level requires motor activity severely decreased to apraxia (inability to perform previously learned motor activities, despite normal motor function). Regarding visual spatial orientation, a “total” level impairment is warranted for severely impaired visual spatial orientation. Examples of such impairment are the following: may be unable to touch or name own body parts when asked by the examiner, unable to identify the relative position in space of two different objects, or unable to find the way from one room to another room in a familiar environment. As to communication, a “total” level is warranted for a complete inability to communicate by either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. As for consciousness, a “total” impairment requires persistently altered state of consciousness, such as vegetative state, minimally responsive state, or coma. Analysis In a June 1968 rating decision, a RO granted service connection for post-concussive syndrome manifested by anxiety reaction and assigned a 10 percent disability rating under Diagnostic Code 8045-9304. A May 1968 VA examination report reveals separate diagnoses of anxiety reaction and post-concussion syndrome. A June 1970 VA examination report reflects a diagnosis of anxiety reaction. A March 2002 VA examination report shows a diagnosis of anxiety disorder not otherwise specified. On October 24, 2008, the Veteran filed a claim for an increased rating for TBI. On April 22, 2008, the Veteran’s former counsel filed a claim of service connection for PTSD. In a March 2010 rating decision, the RO granted service connection for PTSD effective April 22, 2009, and assigned an initial 50 percent disability rating effective April 22, 2009. In an August 2018 rating decision, the RO granted service connection for alcohol use disorder and assigned a 70 percent disability rating for PTSD with alcohol use disorder effective June 13, 2017. Given that anxiety reaction has been a ratable diagnosis (see 38 C.F.R. § 4.132, Diagnostic Code 9400 (1975), the Board will consider whether a separate rating is warranted for a psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, prior to April 22, 2009, the effective date of the grant of service connection for PTSD. As for the psychiatric disorder since April 22, 2009, the Board will consider whether increased ratings are warranted for the service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI. Then, the Board will consider whether an increased rating is warranted for the subjective physical symptoms of TBI. In a November 2008 statement, a non-VA social worker reported that he had treated the Veteran for 12 sessions from November 27, 2007, to March 18, 2008, and that the diagnoses were adjustment disorder and alcohol abuse. The social worker stated that the focus of treatment was to provide insight into his anger issues and to provide tools for better anger management. The social worker noted that he discontinued treatment because he resumed drinking and understood that no progress could be made while drinking. The social worker described the Veteran’s prognosis as being fair. A November 2008 VA examination report reveals that the Veteran complained of headaches and dizziness that occurred on a less-than-weekly basis as well as constant insomnia. He reported anger issues and that he works part time. The examiner stated that the head injury has significant effects on his usual occupation. The examiner noted that though the Veteran does not miss work, he does not associate with colleagues, must be constantly moving, and cannot concentrate. VA treatment records reflect that in June 2009 a mood disorder due to general medical condition (TBI) was diagnosed and that a GAF score of 55 was assigned. A November 2009 VA traumatic-brain-injury examination report reflects that the Veteran noted mild daily headaches that occur usually at the end of the day. He reported that his headaches do not prevent him from doing his usual daily activities and that he does not take medications for his headaches. The examiner noted that the Veteran had a complaint of a mild impairment of memory, attention, concentration, or executive functions, but that there was no objective evidence of impairment on testing. The examiner opined that the cognitive impairment regarding memory, concentration, and attention is at least as likely as not related to the TBI. Judgment was normal, and his social interaction was described as routinely appropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation were normal. The examiner stated that the subjective symptoms do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The examiner noted that the Veteran had one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. The examiner noted that the TBI has no significant impact on his usual occupation. A January 2010 VA PTSD examination report shows that the Veteran has inappropriate behavior manifested by frequent anger and irritability. The Veteran reported that he is more irritable with people than in the past. He has obsessive and ritualistic behavior manifested by working in his yard or trying to help neighbors so that he does not have to think too much. The examiner described his impulse control as being fair but with no episodes of violence. The diagnoses were PTSD and cognitive disorder due to TBI. The examiner assigned a GAF of 53 for impairment over the past year. The examiner noted that the PTSD symptoms are mild to moderate in severity. The examiner opined that there is a total occupational and social impairment due to PTSD signs and symptoms. The examiner explained that the Veteran’s symptoms, activities of daily living, social functioning, concentration, task persistence, and recreational activities are affected by his mental deficits, cognitive functioning, and physical symptoms. VA treatment records show that in March 2010 a cognitive disorder secondary to general medical condition (status post TBI) was diagnosed and that a GAF score of 55 was assigned. A May 2013 VA TBI examination report reveals that the Veteran had a complaint of a mild impairment of memory, attention, concentration, or executive functions, but that there was no objective evidence of impairment on testing. The examiner opined that the cognitive impairment regarding memory, concentration, and attention is at least as likely as not related to the TBI. Judgment was normal, and his social interaction was described as routinely appropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation were normal. The examiner stated that the subjective symptoms do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The examiner noted that the Veteran had one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. The January 2014 VA PTSD examination report reveals that the Veteran had a level of occupational and social impairment described as being manifested by reduced reliability and productivity. The Veteran has symptoms of anxiety, chronic sleep impairment, mild memory loss, and flattened affect. The examiner assigned a GAF of 55 for current impairment. The examiner noted that the Veteran appears to be displaying moderate symptoms or moderate difficulty in social and/or industrial adaptive functioning (few friends, conflicts with peers or co-workers, etc.). The June 2017 VA TBI examination report reflects that there was objective evidence on testing of moderate impairment of memory, attention, concentration, and executive functioning. Judgment was mildly impaired, and social interaction was described as being occasionally inappropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation were normal. The examiner stated that the Veteran had three or more that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The examiner noted that there were no neurobehavioral effects that interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. The June 13, 2017 VA PTSD examination report shows that the Veteran had a level of occupational and social impairment described as being manifested by reduced reliability and productivity. The Veteran has symptoms of difficulty in adapting to stressful circumstances, including work or work-like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. As for the period from October 26, 2008, to April 21, 2009, there is evidence of impaired impulse control. In a November 2008 statement, the Veteran’s girlfriend reported that he was violent. The girlfriend is competent to report that symptom, and the Board finds her credible. Her assertion is supported by medical evidence, to include medical evidence before October 2008 and after April 2009. From November 2007 to March 2008, the Veteran was treated for anger management. At the November 2008 VA examination, the Veteran reported anger issues. The January 2010 VA examiner noted that impulse control was fair but with no episodes of violence. The June 2017 VA examiner found that the Veteran had impaired impulse control, such as unprovoked periods of violence. Accordingly, the Board places great weight on her statement in determining whether he had impaired impulse control from October 2008 to April 2009. There is also evidence of employment impairment. The Veteran’s statements and income information from the Social Security Administration show that the Veteran has worked part time since 2005. Though the Veteran was not treated during the period from October 2008 to April 2009, the evidence afterwards is relevant to determining the level of employment impairment from October 2008 to April 2009 because there is evidence suggesting that the Veteran has had a consistent level of employment impairment during the appeal period. Although the January 2014 VA examiner did not note that the Veteran have difficulty in adapting to stressful circumstances, including work or work-like setting, the June 2017 VA examiner made such a finding. As for employment impairment generally, VA treatment records and the January 2014 VA examination report show that GAF scores in the mid-to-low 50s were assigned in June 2009, March 2010, and January 2014. In the November 2008 statement, the Veteran’s girlfriend reported that she has been the Veteran’s business partner for the past 12 years. She stated that at work the Veteran loses written information and that he is impatient when reading instructions, resulting in missing directions. She described him as becoming progressively more confused. She stated that he gets agitated if questioned about his tasks, to include any tasks done incorrectly. The Board finds that the Veteran’s girlfriend is competent to report these symptoms and that she is credible. The Board again places great weight on her statement in determining his level of employment impairment, such as whether the Veteran has had difficulty in adapting to stressful circumstances, to include work or work-like setting. Given the Veteran’s girlfriend’s statement on impaired impulse control and employment impairment and given the later medical evidence showing specific findings of impaired impulse control and difficulty in adapting to stressful circumstances, to include work or work-like setting, the evidence in equipoise as to whether the service-connected acquired psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control and difficulty in adapting to stressful circumstances (including work or a worklike setting) from October 24, 2008, to April 21, 2009. The next matter is whether the psychiatric disorder underwent an increase in severity during the one-year period prior to the October 24, 2008, claim. A March 2002 VA examination report reflects that a GAF of 81 was assigned for anxiety disorder not otherwise specified and a history of alcohol abuse in full sustained remission. On November 27, 2007, approximately five and half years later, the Veteran began a 12-session period of treatment for an anger-management issue. Thus, the weight of evidence shows that the service-connected acquired psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, underwent an increase in severity in the one-year period prior to October 24, 2008. The Veteran had twelve sessions of treatment from November 2007 to March 2008 for an anger-management issue. In November 2008, the Veteran’s girlfriend reported his history of violence. Accordingly, there is evidence of impaired impulse control during the one-year period prior to the date of claim. As noted above, the Veteran has been working part time since 2005 and has had long-standing employment impairment. Thus, there is evidence of employment impairment during the one-year time period prior to the date of the claim that is consistent with the employment impairment since the date of claim. In light of the above, the evidence is in equipoise as to whether the service-connected acquired psychiatric disorder other than PTSD, previously diagnosed as anxiety reaction, was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control and difficulty in adapting to stressful circumstances (including work or a worklike setting) from October 24, 2007, to October 23, 2008. Regarding the period from April 22, 2009, to June 12, 2017, there is conflicting evidence on impaired impulse control and difficulty in adapting to stressful circumstances (including work or work-like setting). The January 2010 VA examiner noted that impulse control was fair but with no episodes of violence. The January 2014 VA examiner did not indicate that the Veteran had the symptom of impaired impulse control, such as unprovoked periods of violence, whereas the June 13, 2017, VA examiner found that the Veteran had that symptom. As for difficulty adapting to stressful circumstances, the January 2014 VA examiner did not indicate that the Veteran had that symptom, but the June 13, 2017, VA examiner did. As for employment impairment generally, VA treatment records and the January 2014 VA examination report show that GAF scores in the mid-to-low 50s were assigned in June 2009, March 2010, and January 2014. Given the evidence of the long-standing anger-management issue and long-standing employment impairment that the June 13, 2017, VA examiner determined were impaired impulse control and difficulty in adapting to stressful circumstances, respectively, the Board finds that the evidence is equipoise as to whether the service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control and difficulty in adapting to stressful circumstances (including work or a worklike setting) from April 22, 2009, to June 12, 2017. The next matter is whether the psychiatric disorder was manifested by a total occupational and social impairment at any time since October 24, 2007, or by total impairment under the new criteria for rating TBI since October 23, 2008. As for whether a 100 percent disability rating is warranted for the psychiatric disorder at any time since October 27, 2007, there is no evidence of any of the following: persistent delusions or hallucinations; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The VA treatment records, the VA examination reports, and the statement from a non-VA social worker do not show these symptoms. For example, various examination reports show that the Veteran was oriented to person, time, place, and situation. As for gross impairment of thought process or communication, the January 2010 VA examination report reflects that the Veteran had a racing thought process and that his thought content was manifested by ruminations. His speech was slow and coherent. VA treatment records reveal that his thought process was described as logical, coherent, organized, and normal and that his speech had a normal rate and rhythm as well as being relevant. The January 2014 VA examiner noted that the Veteran’s speech was slow and methodical and that his thought content and process reveal that he processed information slowly. The January 2014 VA examiner did not note that the Veteran had the symptom of gross impairment of thought process or communication. Similarly, the March 2017 VA examiner did not indicate that the Veteran had the symptom of gross impairment of thought process or communication. The Board places great weight on the January 2014 and March 2017 VA examination reports that specifically address the existence of gross impairment of thought process or communication. Thus, the weight of evidence does not show that the psychiatric disorder has been manifested by gross impairment of thought process or communication. Regarding grossly inappropriate behavior, the January 2010 VA examiner noted that the Veteran had inappropriate behavior manifested by frequent anger and irritability. The November 2009 and December 2013 VA examiners stated that social interaction was routinely appropriate. The January 2014 and March 2017 VA examiners did not note that the Veteran had the symptom of grossly inappropriate behavior, and the March 2017 VA examiner noted that social interaction was only occasionally inappropriate. The Board places great weight on the January 2014 and March 2017 VA examination reports that specifically address the existence of grossly inappropriate behavior. Therefore, the weight of evidence is against a finding that the psychiatric disorder has been manifested by grossly inappropriate behavior. As for being in persistent danger of hurting himself or others, while the Veteran has been violent towards his girlfriend there is no indication that she was in persistent danger of being hurt by the Veteran. At the January 2010 and January 2014 VA examinations, he denied homicidal or suicidal thoughts. The January 2014 and June 2017 VA examiners did not find that the Veteran had the symptom of persistent danger of hurting himself or others. VA treatment records show no suicidal or homicidal ideation, intent, or plan. The Board places great weight on the medical evidence showing no homicidal ideation and on the January 2014 and June 2017 VA examination reports that specifically address the existence of being in persistent danger of hurting himself or others. Hence, the weight of evidence does not show that the psychiatric disorder has been manifested by persistent danger of hurting himself or others. The January 2010 VA examiner opined that there is a total occupational and social impairment due to PTSD signs and symptoms. The examiner explained that the Veteran’s symptoms, activities of daily living, social functioning, concentration, task persistence, and recreational activities are affected by his mental deficits, cognitive functioning, and physical symptoms. The Board notes that the January 2014 VA examiner also stated that the PTSD symptoms are mild to moderate in severity as well as assigning a GAF of only 53 for impairment over the past year. During the appeal period, the Veteran has been working part time. The January 2014 VA examiner stated that given the Veteran’s difficulty maintaining attention and fatigue associated with PTSD, he could not work more than four to five hours a day. The January 2010 VA examination report reflects that while the Veteran does not have many friends, he tries to socialize. The January 2014 VA examination report reveals that the Veteran had a lot of male friends because he plays poker once a week. The June 2017 VA examination report shows that the Veteran had a relatively active social life because he sees friends on a regular basis. During the appeal period, he has been living with his long-time girlfriend. VA treatment records show that a GAF score of 55 was assigned in June 2009 and March 2010. The Board places greater weight on the evidence showing that the Veteran has been working part time and has had an active social life than on the January 2010 VA examiner’s determination that the Veteran had a total occupational and social impairment. In summary, the weight of evidence is against a finding that service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – has been manifested by a total occupational and social impairment since October 24, 2007. As to whether a 100 percent disability rating is warranted for the psychiatric manifestations of TBI since October 23, 2008, the medical evidence does not show total functional impairment as to memory, attention, concentration, and executive functioning – that is, objective evidence on testing of severe impairment of memory, attention, concentration, or executive functioning resulting in severe functional impairment. The November 2009 and January 2013 VA examiners noted that the Veteran had a complaint of a mild impairment of memory, attention, concentration, or executive functions, but that there was no objective evidence of impairment on testing. The June 2017 VA TBI examination report reflects that there was objective evidence on testing of only moderate impairment of memory, attention, concentration, and executive functioning. Therefore, the medical evidence does not show severe impairment. As for judgment, for a level of “total”, judgement must be severely impaired. The November 2009 and May 2013 VA TBI examiner described judgment as normal. The June 2017 VA examiner noted that judgment was only mildly impaired. Thus, the medical evidence does not show severely impaired judgment. For orientation, a “total” level requires consistently disoriented to two or more of the four aspects. The November 2009, May 2013, and June 2017 VA examiners all stated that the Veteran was always oriented to person, time, place, and situation. Consequently, the medical evidence does not show “total” impairment of orientation. As to motor activity, a “total” level requires motor activity severely decreased to apraxia. The November 2009, May 2013, and June 2017 VA examiners all stated that motor activity was normal. As a result, the medical evidence does not reveal “total” impairment of motor activity. Regarding visual spatial orientation, a “total” level impairment is warranted for severely impaired visual spatial orientation. The November 2009, May 2013, and June 2017 VA examiners all stated that motor activity was normal. Accordingly, the medical evidence does not reveal “total” impairment of visual spatial orientation. As to communication, a “total” level is warranted for a complete inability to communicate by either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. The November 2009, May 2013, and June 2017 VA examiners all noted the Veteran was able to communicate by spoken or written language (expressive communication) and was able to comprehend spoken and written language. Therefore, the medical evidence does not show “total” impairment of communication. As for consciousness, a “total” impairment requires persistently altered state of consciousness, such as vegetative state, minimally responsive state, or coma. The November 2009, May 2013, and June 2017 VA examiners all stated that the Veteran had normal consciousness. Put simply, the medical evidence does not show a total impairment of consciousness. In short, the weight of evidence is against a finding that service-connected psychiatric disorder – to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI – has been manifested by total impairment as to memory, attention, concentration, and executive functions; judgment; orientation; visual spatial orientation; or communication since October 23, 2008. Turning to whether a higher rating is warranted for subjective physical symptoms of TBI, there is no competent medical evidence of purely neurological disabilities, such as hemiplegia, cranial nerve paralysis, etc., that would be separately rated under the old criteria. Similarly, there is no competent medical evidence of physical (including neurological) dysfunction that would be separately rated under the new criteria. The November 2008 VA examination report reflects that gait and balance were normal. There were no findings of ataxia, incoordination, spasticity, or speech impairment. There was no evidence of autonomic nervous system problems. Sensory function of a nerve or group of nerves was not affected. There was evidence of bowel, bladder, or cranial nerve impairment. There was no evidence of loss of sense of taste or smell. The November 2009 VA examiner noted that there were no physical findings of the following: autonomic nervous system impairment, gait abnormalities, imbalance, tremors, muscle atrophy, loss of muscle tone, spasticity, rigidity, fasciculations, cranial nerve dysfunction, hearing problems, endocrine dysfunction, skin breakdown, and vision problems. The June 2017 VA examiner noted that there was no physical or neurological disorder attributable to TBI. The Veteran has been receiving the maximum schedular rating for subjective symptoms of TBI under the old rating criteria in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. The weight of evidence is against a finding that the Veteran has or has had multi-infarct dementia associated with brain trauma during the appeal period. VA treatment records, the VA examination reports, and the November 2008 statement of a non-VA social worker do reveal a diagnosis of multi-infarct dementia associated with brain trauma. In any event, if even there were a diagnosis of multi-infarct dementia, the disorder would be rated under the diagnostic codes for a psychiatric disorder and psychiatric manifestations of TBI. A higher rating is only warranted based on subjective symptoms under the new criteria. The criteria for a “2” level of impairment (40 percent) are three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples include marked fatigability, blurred or double vision, and headaches requiring rest periods during most days. The November 2009 and December 2013 VA examiners stated that the subjective symptoms do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships. The June 2017 VA examiner stated that the Veteran had three or more that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Therefore, the medical evidence does not show three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships Simply put, the weight of evidence shows that the subjective physical symptoms of TBI have not been manifested by three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships since October 23, 2008. 5. Entitlement to TDIU Governing Law and Regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Analysis From October 24, 2007, to April 21, 2009, the Veteran was service connected for the following disabilities: an acquired psychiatric disorder, previously diagnosed as anxiety reaction; subjective physical symptoms of TBI; a left eye scar; and right knee arthralgia. From October 24, 2007, to March 31, 2009, these service-connected disabilities were rated as 70 percent disabling with the psychiatric disorder being rated 70 percent disabling. From April 1, 2009, to April 21, 2009, these service-connected disabilities were rated as 80 percent disabling with the psychiatric disorder being rated 70 percent disabling. Since April 22, 2009, the Veteran has been service connected for the following disabilities: an acquired psychiatric disorder (to include PTSD, alcohol use disorder, the psychiatric disorder previously diagnosed as anxiety reaction, and psychiatric manifestations of TBI); subjective physical symptoms of TBI; a left eye scar; and right knee arthralgia. Since April 22, 2009, these service-connected disabilities have been rated 80 percent disabling with the psychiatric disorder being rated 70 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since October 24, 2007. In his September 2013 formal TDIU claim, the Veteran reported that he last worked full time in February 2010, that he only had one year of high school education, and that he had no additional education or training. In his November 2015 formal TDIU claim, the Veteran reported that his disability affected his ability to work full time in 2009 and that he became too disabled to work in 2010. The Veteran has worked part time as a handyman. In a February 2016 statement, the Veteran’s current counsel argued that his income information shows marginal employment. Income information provided by the Social Security Administration show that 2005 was the last year the Veteran earned over $12,000. In 2007, 2008, and 2009, he earned $10,170; $11,550; and $550, respectively. He earned no more than approximately $5,000 in years 2010 through 2014. The poverty threshold for one person in 2007, 2008, and 2009 were $10,590; $10,991; and $10,956, respectively. Manual M21-1 MR, IV.ii.2.F.6.b. The Veteran earned less than the poverty threshold in 2007 but slightly more than the poverty threshold in 2008. The Veteran earned well below the poverty threshold in 2009 even though his TDIU formal claims suggest he was working full time that year. While the Veteran earned more than the poverty threshold in 2008, he was in an employment situation where he was a business partner of his girlfriend. The Board finds that this employment situation was a protected environment such as a family business. The weight of evidence shows that the Veteran’s part-time employment since October 24, 2007, has been marginal employment. The November 2008 VA examiner noted that the head injury has significant effects on his usual occupation. That examiner noted that though the Veteran does not miss work, he does not associate with colleagues, must be constantly moving, and cannot concentrate. The November 2009 VA examiner noted that the TBI has no significant impact on his usual occupation. The January 2010 VA examiner stated that the PTSD results in total occupational impairment. The January 2014 VA examiner stated that given the Veteran’s difficulty maintaining attention and fatigue associated with PTSD, he could not work more than four to five hours a day. The June 2017 VA examiner noted that the Veteran had impaired impulse control and difficulty adapting to stressful circumstances, including work or work-like setting. As discussed above, the Board has found that the medical evidence shows similar employment impairment due to the service-connected psychiatric disorder before and after the grant of service connection for PTSD on April 22, 2009. Given this conflicting evidence, the evidence is in equipoise as to whether the Veteran’s service-connected psychiatric disorder (which did not include PTSD and alcohol use disorder) and subjective physical symptoms of TBI rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from October 24, 2007, to April 21, 2009. Similarly, the evidence is in equipoise as to whether the Veteran’s service-connected psychiatric disorder (which includes PTSD and alcohol use disorder) and subjective physical symptoms of TBI have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since April 22, 2009. Accordingly, entitlement to TDIU since October 24, 2007, is in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel