Citation Nr: 18157845 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 13-35 318 DATE: December 14, 2018 ORDER Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) is denied. Entitlement to an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted from May 14, 2012. Entitlement to an effective date prior to May 14, 2012, for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. For the entire appeal period, residuals of the Veteran’s TBI, have included mild memory loss, poor concentration, migraine headaches with nausea, sensitivity to light and sound, dizziness, fatigue, and tinnitus, with no more than level 1 impairment of any facet related to cognitive impairment and subjective symptoms. 2. For the entire appeal period, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas. 3. The Veteran currently meets the schedular criteria for a TDIU from February 3, 2011; the Veteran’s TDIU claim was first received by VA on May 14, 2012, as part and parcel of his increased rating claim for migraine headaches, and his service-connected disabilities did not render him unemployable prior to May 14, 2012. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for residuals of TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Code (DC) 8045. 2. The criteria for an initial 70 percent rating, but no higher, for PTSD are met since May 14, 2012. 38 U.S.C. § 1155; 38 C.F.R. §§, 4.7, 4.21, 4.125, 4.126, 4.130, DC 9411. 3. The criteria for an effective date earlier than May 14, 2012, for a TDIU are not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 2004 to January 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012 and July 2014 and rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2015 decision, the Board denied a rating in excess of 50 percent for the Veteran’s PTSD; denied an effective date earlier than May 14, 2012, for a 50 percent rating for migraine headaches; and remanded increased rating claims for migraine headaches and a TBI and earlier effective date claims for PTSD and a TDIU. The Veteran timely appealed the September 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board decision as to a rating in excess of 50 percent for his PTSD. The Court dismissed the appeal as to an effective date earlier than May 14, 2012, for a 50 percent rating for migraine headaches. The Court also acknowledged that the Veteran’s increased ratings claims for migraine headaches and a TBI and earlier effective date claims for PTSD and a TDIU had been remanded by the Board and were not before the Court. In a December 2016 Board decision, the Board remanded the Veteran’s increased rating claim for PTSD for further development and the remaining issues on appeal for issuance of an Statement of the Case (SOC). In a November 2017 rating decision, the RO granted an increased rating of 70 percent for PTSD from November 13, 2017. As this is not a grant of full benefits, the issue remains on appeal. In his June 2018 VA Form 9, following the issuance of an April 2018 SOC addressing the increased rating claims for migraine headaches and a TBI and earlier effective date claims for PTSD and a TDIU, the Veteran perfected his appeal as to the issues of an increasing rating for a TBI and earlier effective date for a TDIU only. Increased Ratings Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged ratings” is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Additionally, the primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 disability. 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). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 1. Entitlement to a rating in excess of 10 percent for a TBI is denied. I. Veteran’s Contentions The Veteran maintains that his residuals of a TBI, namely his memory loss, is more severe than currently reflected and is moderate in nature. To this end, he maintains that a rating higher than 10 percent for his TBI is warranted. See June 2018 VA Form 9 and October 2018 Correspondence. II. Rating Criteria The Veteran’s residuals of a TBI are rated under 38 C.F.R. § 4.124a, DC 8045. DC 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include 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. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. In this regard, the Veteran is separately service-connected for PTSD and assigned a rating under DC 9411. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss/tinnitus; loss of sense of smell/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. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in 38 C.F.R. § 4.124a, DC 8045, that are reported on an examination, VA is to evaluate under the most appropriate DC. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. In this regard, the Veteran is separately service-connected for tinnitus under DC 6260. VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” addresses 10 facets of a 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.” A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The current version of DC 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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. 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. 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. Note (4): The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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 DC 8045. Note (5): A veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, DC 8045, in effect before October 23, 2008, may request review under DC 8045, irrespective of whether his disability has worsened since the last review. VA will review that Veteran’s disability rating to determine whether the Veteran may be entitled to a higher disability rating under DC 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, DC 8045. III. Analysis In general, a claim for increased rating is one that is received more than one year after the grant of entitlement to service connection and assignment of the initial rating was effectuated, i.e., after expiration of the time for appeal, such that the decision assigning the initial rating became final. However, 38 C.F.R. § 3.156(b) may render a decision assigning an initial rating not final and, therefore, require conversion of what was certified as an increased rating claim to an initial rating claim analysis. Specifically, in Young v. Shinseki, the Court noted that 38 C.F.R. § 3.156(b) provides a potential exception to the general rule that a decision will become final unless a Notice of Disagreement (NOD) is filed within one year of the underlying rating decision if new and material evidence is received within that year. 22 Vet. App. 461, 466 (2009). This provision applies both to claims that are denied by the Agency of Original Jurisdiction and to claims for which a rating decision grants service connection and assigns an initial rating and effective date. See Id. at 474 (Lance, J., concurring). In Young, the Court found that, upon receipt of medical evidence relating to the veteran’s disability within one year after the rating decision that granted service connection, VA was required to determine whether that evidence constituted new and material evidence under 38 C.F.R. § 3.156 in order to determine the proper scope of the issue on appeal. Id. at 467-68. Here, the RO granted service connection for a TBI in a September 2011 rating decision and assigned a 10 percent rating from January 28, 2010. The Veteran did not submit a NOD with the rating VA assigned within one year of its decision. However, in July 2012, VA treatment records were submitted that were not previously considered in the September 2011 rating decision which related to his desire for an increased rating. Moreover, in August 2012, he submitted correspondence claim indicating he experienced memory loss, sleep loss, and severe migraine headaches due to his TBI. The RO did not determine whether that evidence constituted new and material evidence in relation to the prior claim. Therefore, the September 2011 rating decision did not become final, and the appeal period is from January 28, 2010, the date of award of service connection for his TBI residuals. A July 2010 VA treatment record noted the Veteran’s complaints of cognitive concerns stating he had poor concentration and short-term memory deficits and was recommended for a neuropsychological examination. VA treatment records from July 2010 through May 2012 described the Veteran’s neurologic condition as awake, alert and conversant; oriented to history taking; speech clear, fluent and appropriate; no facial asymmetry; moves all extremities equally; casual gait; and station within normal limits. The Veteran presented for a VA neuropsychological examination in September 2010. The VA neuropsychologist noted the Veteran’s premorbid intellectual functioning, his general verbal knowledge and reasoning, perceptual reasoning, and speed of processing information was average. He also indicated the Veteran exhibited a relative strength in his ability to mentally manipulate information in his memory, which was above average and his performance on measures of academic knowledge was consistently average across reading, spelling and math. He indicated the Veteran’s performance on measures that are most sensitive to the impacts of TBI, namely measures of processing speed and complex attention, were generally solid in the average to above average range; he had a relatively weaker performance on an arithmetic task, which was below his previous performance in 2008 and he had a strength on a measure requiring him to repeat strings of digits forward and backward; his verbal knowledge and reasoning was consistently below average to average; he exhibited significant variability in his visuospatial functioning with a mildly impaired performance on a visuoconstructional task and above average performance on a visual abstract reasoning task. The VA examiner found the Veteran’s performance on a measure of cognitive flexibility requiring him to shift back and forth between letters and numbers on a graphomotor task was mildly impaired, as was his verbal generation from the semantic categories, which was a significant decline from his 2008 performance. The Veteran’s verbal generation from a letter stem was above average; his performance on a concept formation task requiring him to benefit from verbal feedback was average; and his performance on measures of motor functioning was consistently below average to average bilaterally on measures of grip strength, motor speed and fine motor dexterity. Moreover, the examiner noted the Veteran completed several measures of new learning and memory, including measures of structured and unstructured verbal information and visual new learning and memory. He noted that the Veteran exhibited significant variability on these measures with his ability to acquire new verbal and visual information on structured and unstructured verbal memory and two visual memory tasks was below average to average; a mild/moderate impairment in his ability to acquire new verbal pairs; and his immediate memory for another visual new learning and memory task was severely impaired. The examiner also found that the Veteran’s ability to recall information after a delay was below average to average on structured and unstructured verbal memory, as well as on visual memory task, but he exhibited moderate/severe to mild/moderate impairments in his delayed recall of two other visual tasks, as well as on verbal pairs. In conclusion, the VA examiner stated that the variability in his performance is suggestive of intratest variability that may be due to factors other than cognitive deficits, as his ability to learn and freely recall appeared to be intact on several measures, which would be unlikely in individuals with true memory deficits. He highlighted the fact that there was some unexpected variability in the comparison between test administrations in 2008 and 2010 and that the Veteran exhibited a decline in performance on measures of verbal abstract reasoning and visuoconstruction, and also on some measures of memory. He stated that these findings are contrary to the nature of a brain injury, as a decline in functioning would not be expected and that although some of the decline may be due to use of newer versions of tests, it is unlikely that simply changing the versions would have as large an impact on his functioning as is represented by his change in performance since 2008. Thus, the examiner stated that it “appears likely that his functioning may have declined due to variables that are unrelated to the sequelae of any potential TBI.” The Veteran underwent a VA TBI examination in November 2010. The examiner diagnosed the Veteran with residuals of mild TBI with residuals of migraine headaches with nausea, light/sound sensitivity, dizziness and bilateral mild tinnitus and noted he likely had no other residuals from a TBI. The examiner noted the Veteran’s complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions but without objective evidence on testing. The examiner described the Veteran’s judgment as normal; social interaction routinely appropriate; orientation to person, time, place, and situation normal; motor activity normal; visual spatial orientation normal; subjective symptoms that do not interfere with work, instrumental activities of daily living or work, and family or other close relationships. The examiner noted one or more neurobehavorial effects that do not interfere with workplace interaction or social interaction including irritability, impulsivity, unpredictability, lack of motivation, verbal aggression physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability were indicated. The Veteran’s was found to be able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language, and his consciousness was normal. The examiner noted a normal neurologic examination, including normal memory, and his TBI had no effects on work. Based on the foregoing, a “1” is assigned for memory, attention, concentration, and executive functions facet and a “0” is assigned for every other facet. The Veteran underwent a VA TBI screening in May 2012 and the report noted symptoms of difficulty concentrating, learning, or recalling information; significant impairment in social or occupational functioning; excessive fatigue; disturbed sleep; and headaches. VA treatment records in 2012 note the Veteran’s complaints of memory difficulties. Specifically, the Veteran reported concentration and focus issues in school; being late for a group therapy meeting due to being pulled over for running a red light that he did not remember seeing the light or going through it; difficulty with his memory in that he is constantly forgetting simple tasks and does not remember what is being said in group or individual therapy; and confusion surrounding events in his life that he cannot remember the dates or times. A VA provider noted he consistently demonstrates short term memory loss which is undoubtedly a result of his PTSD or his significant TBI. See August 2012 and September 2012 VA treatment records. Based on the foregoing a “1” is assigned for memory, attention, concentration, and executive functions and for social interaction and a “0” is assigned for every other facet. VA treatment records from February 2012 to March 2013 noted no focal neurological deficits and described the Veteran as alert and conversant. The Veteran underwent a VA TBI examination in April 2014. He reported significant mental health issues and ongoing cognitive decline. The examiner noted the Veteran’s complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items) attention, concentration, or executive functions but without objective evidence on testing. The examiner described the Veteran’s judgment as normal; social interaction occasionally inappropriate; orientation to person, time, place, and situation normal; motor activity normal; and visual spatial orientation normal. The examiner noted three or more subjective symptoms (headaches, dizziness, and difficulty sleeping) that mildly interfere with work, instrumental activities of daily living or work, and family or other close relationships were indicated. One or more neurobehavorial effects (irritability, difficulty in large groups, and apathy) that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them were found. The Veteran was found to be able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language and his consciousness is normal. No impact on his ability to work was indicated. Based on the foregoing, a “1” is assigned for memory, attention, concentration, and executive functions, social interaction, subjective symptoms, and neurobehavioral effects and a “0” is assigned for every other facet. A February 2015 VA treatment record noted the Veteran’s subjective complaints of memory deficit or minimal complaints similar to: misplacing familiar objects or forgetting names one formerly knew. No obvious or reported difficulty in employment, social, or daily living situations was indicated. An October 2016 VA treatment record noted the Veteran’s report of his memory becoming clearer and more detailed and a May 2017 VA treatment record noted mild memory impairment. Based on the above-cited evidence, a schedular rating in excess of 10 percent is not warranted under DC 8045, as the Veteran’s highest facet is rated at a “1,” which is assigned a 10 percent rating. The Board also notes as cited above that the Veteran is separately service-connected for PTSD, tinnitus, and migraine headaches and is rated under DCs 9411, 6260, and 8100, respectively. Finally, regarding the Veteran’s representative argument that a remand to the agency of original jurisdiction is warranted if the claim cannot be granted “for proper discussion of supportive treatment records as outlined in adherence to Daves v. Nicholson, 21 Vet. App. 46, 51 (2007),” the Board finds this argument to be without merit and remand is not warranted. See October 2018 Statement. Notably, the case cited by the Veteran’s representative concerns VA’s obligation to seek clarification when presented with an unclear medical opinion. The representative has not identified any VA opinion deficiency, nor has the Board. Additionally, the Board has discussed the records referenced by the representative in the above decision. To the extent the representative references an audiology treatment record noting “moderate” forgetfulness and memory loss, the Board affords more probative value to the findings of the VA examiners, as they have more expertise in TBI assessment than an audiologist. 2. Entitlement to an initial 70 percent rating for PTSD is granted. The Veteran seeks a higher rating for his PTSD due to symptoms of nightmares, depression, social isolation, hypervigilance, and anxiety. See August 2012 Veteran Statement. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Fenderson, 12 Vet. App. 119. In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a). Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The Secretary, VA, determined DSM-5 applies to claims certified to the Board on and after August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015). Here, the RO first certified the Veteran’s appeal to the Board in June 2015; thus, this claim is governed by the DSM-5. Notably, the DSM-5 does not employ Global Assessment of Functioning (GAF) scores to identify levels of disability. The Veteran’s PTSD is rated pursuant to DC 9411. 38 C.F.R. § 4.130; DC 9411. Under DC 9411, a 50 percent rating is warranted where the disorder is manifested by 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 and maintaining effective work and social relationships. A 70 percent rating is warranted where the disorder is manifested by 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. A 100 percent rating is warranted where the disorder is manifested by 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. 38 C.F.R. § 4.130; DC 9411. The symptoms listed in DC 9411 are not intended to 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran is currently in receipt of a 50 percent rating from May 14, 2012, and a 70 percent rating from November 13, 2017, for his PTSD. The appeal period is from May 14, 2012, the date of award of service connection for his PTSD. Initially, the Board notes that the Veteran also has a diagnosis of major depressive disorder and a mood disorder. See July 2012, January 2013, and November 2017 VA examination reports. The evidence of record does not sufficiently distinguish the symptoms of these disorders from his service-connected PTSD. Thus, the Board’s instant discussion attributes all of the Veteran’s mental health symptoms to his service-connected PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board finds that a 70 percent rating, but no higher, is warranted from May 14, 2012, based on occupational and social impairment, with deficiencies in most areas, due to such symptoms as obsessional rituals which interfere with routine activities; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; isolative behaviors; impaired impulse control (such as unprovoked irritability with periods of violence); hypervigilance; exaggerated startle response; difficulty in adapting to stressful circumstances (including work or a work-like setting); and difficulty establishing and maintaining effective relationships. Specifically, VA treatment records dated after his initial service connection claim for PTSD document the Veteran’s increased insomnia; hypervigilance; startle response; intense anger; memory loss, panic attacks at least four to five times a week; high stress at certain times of the year; avoidance; social isolation; poor judgment with impaired and abstract thinking; generalized anxiety and emotional numbing; unsettled, sleep is markedly impaired to nonexistent sleep; mood swings that hinder his ability to accomplish most tasks; and great difficulty establishing and maintaining effective work and social relationships. See June 2012 VA treatment record. The July 2012 VA examiner noted recurrent and distressing recollection of the event, including images, thoughts or perceptions; recurrent distressing dreams of the event, efforts to avoid thoughts, feelings or conversations associated with the trauma; intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid activities, places, or people that arose recollections of the trauma; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others (difficulty in establishing and maintaining effective work and social relationships); difficulty falling or staying asleep; irritability or outbursts of anger (impaired impulse control); hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; panic attacks more than once a week; and chronic sleep impairment. The Veteran was afforded another VA examination in January 2013. The VA examiner described the Veteran’s orientation and consciousness as alert and attentive; appearance and behavior as cooperative and reasonable; speech was normal; language was intact; mood was euthymic; affect was broad range; perceptual disturbance was absent; thought process and association was normal and coherent; thought content was normal; insight was limited; judgment was “impulsive;” and knowledge was average. The Veteran denied suicidal or homicidal ideations, mania, and paranoia. The April 2014 VA examiner noted the Veteran was casually dressed and appropriately groomed; appeared his stated age; pleasant and cooperative; speech is normal; flattened affect; thought process is clear and coherent; avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic events; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; feelings of detachment or estrangement from others; hypervigilance; problems with concentration; sleep disturbance; and anxiety. He found no evidence of obsessions, delusions, or impaired reality testing. The Veteran reported his current mood as stressed out for the last two months that he attributes to the weather and not being able to get out that much; wondering about his future and what will happen to him; irritability for reason; confusion; nightmares three to four times a week; flashbacks; suspiciousness; obsessional rituals (checks doors and windows three to four times per night); poor concentration that interfere with work and organizational tasks; sleep issues due to nightmares; and social isolation. He also reported dissatisfaction with current life; lack of positive emotional experiences; significant anhedonia; lack of interest; anxiety, anger, and fear; uncomfortability around others; heightened excitation; and distrust of others. He denied suicidal and homicidal ideation; acute mania; hypomania; and hallucinations (visual, auditory, tactile, olfactory, and gustatory). Most recently in November 2017, the VA examiner noted the Veteran was casually dressed and appropriately groomed; speech is normal; mood is stressful and discouraging; affect is dysthymic, anxious, and polite; thought process is logical and goal-directed; insight is poor; judgment is intact; orientation is normal; avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic events; intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid activities, places, or people that arose recollections of the trauma; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; feelings of detachment or estrangement from others; markedly diminished interest or participation in significant activities; irritable behavior and angry outbursts (with little or no provocation); hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; suspiciousness; panic attacks more than once a week; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported increased anger, fatigue/low energy, concentration difficulties, and sleep difficulties due to nightmares. He denied suicidal and homicidal ideation and hallucinations. Given the Veteran’s mood deficiencies, obsessional rituals, isolative behaviors, impaired impulse control, near continuous-panic or depression, cognitive problems, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances (including work or a work-like setting), his PTSD has resulted in occupational and social impairment with deficiencies in most areas (judgment, thinking, work and mood) supporting a 70 percent rating beginning May 14, 2012. The Veteran’s symptoms, however, do not approximate a rating of 100 percent as they are not of such a severity, frequency or duration to result in total occupational and social impairment. In this regard, while he has demonstrated some memory problems, they are not of the severity contemplated in a total rating. There is also no evidence in the record of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; a persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene) disorientation to time or place; or any other symptoms of a similar severity, frequency, or duration. Thus, his symptoms and disability picture more nearly approximate the criteria of a 70 percent rating. 38 C.F.R. § 4.7. 3. Entitlement to an effective date prior to May 14, 2012, for a TDIU due to service-connected disabilities is denied. The Veteran asserts that an effective date prior to May 14, 2012, is warranted for the grant of a TDIU. Specifically, he maintains that he is entitled to the “earliest date of when it was ascertainable that his service-connected disabilities worsened within one year of the veteran’s [TDIU] application filing,” as his TDIU claim was also a claim for an increased rating. See July 2015 NOD. (The Board notes the Veteran’s argument in this regard is misplaced, allowing for an effective date one year prior to his August 2013 TDIU filing would result in an effective date in August 2012, later than the one presently assigned.) He also raises the issue of extraschedular consideration in determining the effective date. See October 2018 Veteran’s Representative Statement. With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See id. Even when the percentage requirements under 38 C.F.R. § 4.16(a) are not satisfied, a total disability evaluation may still be assigned on an extraschedular basis. Indeed, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, exceptional cases may be submitted to the Director of Compensation and Pension Service for extraschedular consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). Service connection is currently in effect for PTSD, obstructive sleep apnea, migraine headaches, lumbar spine degenerative disc disease, tinnitus, TBI, and gastroesophageal reflux disease (GERD). Historically, the combined ratings have been 50 percent from January 28, 2010; 80 percent February 3, 2011; 90 percent from May 14, 2012, and 100 percent from November 13, 2017. Thus, the Veteran has met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) since February 3, 2011, and a TDIU would only be available on an extraschedular basis prior to this date. Here, the Veteran asserts that he is entitled to a TDIU prior to May 14, 2012, based on his service-connected disabilities. The Veteran has a high school diploma with two years of college education. He has no post-service employment history. See August 2013 VA Form 21-8940. The Veteran initially filed an increasing rating claim for migraine headaches on May 14, 2012, and a formal claim for a TDIU in August 2013. As noted above a TDIU claim is part and parcel of an increased rating claim and there is no earlier communication that can be interpreted as an informal claim, therefore the Board finds that May 14, 2012, was the date of the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Even assuming a claim for a TDIU was raised by the record prior to this date, the Board finds that the “date entitlement arose” for TDIU purposes is no earlier than May 14, 2012, thereby precluding an earlier effective date and the need for extraschedular referral, as the competent evidence of record does not demonstrate his service-connected disabilities, rendered the Veteran unable to secure or follow a substantially gainful occupation prior to May 14, 2012. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). In this regard, the Veteran indicates his is unable to work due to his PTSD, TBI, and migraine headaches disabilities. See August 2013 VA Form 21-8940. A November 2010 VA examiner noted his TBI and GERD disabilities did not have any effect on his ability to work and his back disability impacted his work in that he would have problems with lifting and carrying. There is no other evidence of record prior to May 14, 2012, that indicates any of the Veteran’s service-connected disabilities prevented him from obtaining or securing a substantially gainful occupation other than the Veteran’s statements, and the Board affords more probative value to the assessment of the VA examiners, as they have more expertise to assess the occupational impact of his disabilities. The Board acknowledges the November 2010 VA examiner’s finding that the Veteran’s back disability impacted occupational functioning, however the Board finds this statement did not show the Veteran was unemployable due to his back disability but instead reflects loss of industrial capacity contemplated by the 10 percent rating assigned for that disability. 38 C.F.R. § 4.1. Thus, the Board finds an effective date earlier than May 14, 2012, is not warranted for the grant of a TDIU. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel