Citation Nr: 20028060 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-43 958 DATE: April 22, 2020 ORDER The appeal for a rating greater than 70 percent for posttraumatic stress disorder with traumatic brain injury (TBI) from July 22, 2013 to the present, is denied. A separate 10 percent disability rating, but no higher, for TBI residual of visual spatial orientation distinguishable from psychiatric symptoms, from July 22, 2013, is granted subject to the laws and regulations governing payment of monetary benefits. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At all points pertinent to this appeal, the Veteran’s PTSD has been manifested, at its worst, by occupational and social impairment with deficiencies in most areas, including work, family relations, thinking, or mood, due to such symptoms as the following: near-continuous depression, impaired impulse control, difficulty adapting to stressful situations, and difficulty concentrating; total occupational and social impairment is not shown by the record. 2. The highest level for the Veteran’s TBI residuals, distinguishable from the psychiatric symptoms, has been Level 1 for visual spatial orientation for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 70 percent for service-connected PTSD with TBI residuals are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a separate 10 percent disability rating, but no higher, for TBI residual of visual spatial orientation, from July 22, 2013, are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Code 8045 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1994 to December 1998. The Veteran testified before the undersigned Veterans Law Judge during a June 2018 videoconference hearing, the transcript of which is included in the file. This case was previously before the Board in July 2018. At that time, the Board granted a separate rating for tinnitus as well as an initial rating of 70 percent for TBI residuals for the period prior to July 22, 2013 but remanded the appeal with respect to the period after July 22, 2013. The Board also notes that during the pendency of the appeal, the Veteran asserted entitlement to TDIU due to injuries which he asserted occurred due to his TBI residuals. See November 2018 claim. The agency of original jurisdiction (AOJ) denied this claim in a December 2018 rating decision. Nevertheless, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As the Veteran has indicated that he is unable to work due, in part, to his TBI residuals, the Board finds that the claim for TDIU was raised as part and parcel of the current appeal for a higher rating. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). By way of background, service connection was originally granted for the Veteran’s TBI residuals with cognitive disorder not otherwise specified, in a June 2013 rating decision, and assigned a 40 percent disability rating, effective in May 2012. The present claim arises from the Veteran’s disagreement with the assigned rating. The Veteran also appealed the assigned effective date and the Board addressed the same in its July 2018 decision. During the pendency of the appeal, the Veteran filed a claim for service connection for PTSD in July 2013. Following the grant of service connection of PTSD, the Veteran’s disability was recharacterized as PTSD with TBI residuals and assigned a 70 percent disability rating from July 22, 2013. See November 2014 rating decision. In its July 2018 decision, the Board increased the initial rating for TBI residuals to 70 percent prior to July 22, 2013 and remanded the question of entitlement to a rating greater than 70 percent from July 22, 2013, to include consideration of separate ratings for TBI and PTSD from July 22, 2013. Separate ratings are in effect for TBI residuals of migraine headaches, tinnitus, and scarring. For the following reasons, the Board finds that a rating greater than 70 percent for PTSD is not warranted; however, a separate 10 percent disability rating, but no higher, for TBI residual of visual spatial orientation is warranted from January 11, 2018. Factual Background Because the Veteran’s symptoms for TBI and PTSD overlap, a combined discussion of the factual background is appropriate. In a September 2014 VA examination report, the VA examiner noted the Veteran’s TBI and PTSD symptoms overlapped, making it difficult to determine whether the Veteran’s symptoms were attributable specifically to the Veteran’s TBI and/or PTSD. The examiner specifically identified symptoms as follows: depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, impaired impulse control. The examiner also noted that the Veteran’s affect was appropriate, speech was pressured and rapid, dress and grooming were appropriate, thought process was logical, coherent and goal-directed, thought content was non-bizarre with no evidence of delusions, no hallucinations were noted, judgment and insight appeared intact. The examiner also noted that the Veteran did not report any current suicidal ideation, intent or plan and provided no evidence of imminent danger to himself or others. The Veteran was employed at the time of the September 2014 VA examination. Overall, the examiner determined that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was provided with another VA PTSD examination in December 2015. The December 2015 VA examiner also opined that it was not possible to differentiate symptoms attributable to the Veteran’s TBI and PTSD because the symptoms overlapped. The December 2015 VA examiner noted that the Veteran had the following symptoms: anxiety; suspiciousness; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and impaired impulse control. The December 2015 VA examiner also noted that the Veteran was casually dressed and well-groomed, exhibited appropriate behavior, and denied delusions or hallucinations. The Veteran was also alert, oriented to time, place, situation, insight and judgment were fair. With respect to memory impairment, the examiner noted that the Veteran’s wife handled their finances due to the memory impairment. Overall, the December 2015 VA examiner determined that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran’s disorder was slightly worse than it had been at the prior VA examination in September 2014. In January 2017, the Veteran’s VA treating provider for both his PTSD and TBI, noted that the Veteran’s mental health concerns resulted in required assistance with meal planning, errands, dressing, and household running. In June 2017, the Veteran was provided with a VA PTSD examination. The examiner noted that the Veteran’s symptoms were moderate to severe, chronic and seemingly worsening with time. The examiner determined that it was not possible to differentiate symptoms attributable to PTSD and TBI. The June 2017 VA examiner identified the following pertinent symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control; neglect of personal appearance and hygiene. The June 2017 VA examiner determined that the Veteran’s symptoms had worsened with time, exhibiting especially with behavioral dyscontrol and frontal lobe syndrome. The examiner noted that the Veteran did not appear to pose any threat of danger to himself or others. In December 2017, the Veteran submitted a statement indicating that his symptoms had increased and that he now had inappropriate behavior, impaired judgment and that he did not go out a lot because he was worried about his impulses. Also in December 2017, the Veteran’s friend and coworker, T.C., submitted a letter documenting his observations of the Veteran’s symptoms. T.C. reported having known the Veteran for about 10 years and reported observations of the Veteran’s inappropriate behavior at work, explosive temper, and heavy drinking while at work. T.C. reported that the Veteran had no respect for leadership which led to his involuntary departure from the company. T.C. also reported that the Veteran’s behavior got so extreme that the Veteran was not invited to do anything socially because his behavior could not be trusted. T.C. observed that the Veteran’s constant mood was as if he was in a loud and rowdy dive bar where any time of actions were okay. T.C. inferred that the Veteran had no accountability for his actions and did not grasp that his action hurt others and probably severely damaged relationships. Another friend, J.G., also submitted a letter in December 2017 describing the Veteran’s behavior. J.G. reported that in normal, everyday situations, the Veteran would exhibit strange behavior as though he had no idea of the consequences of his actions, including routine outbursts of inappropriate language and subject matter in public and private settings. J.G. also reported that it was not unusual for the Veteran to get into physical altercations when provoked or express the desire to act out violently. The Veteran’s private treatment provider, Dr. L.D., also submitted a letter indicating that the Veteran received treatment for PTSD and TBI symptoms on a weekly basis. Dr. L.D. reported that the Veteran was in the middle of a delicate treatment process and would deteriorate quickly without continued treatment. Dr. L.D. indicated that the Veteran struggled with trusting his therapist and the environment. In January 2018, the Veteran was provided with a VA TBI examination. At that time, the VA examiner determined that the Veteran had moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. The January 2018 VA examiner also found that the Veteran’s judgment was moderately severely impaired. The examiner based the determination on the Veteran’s report that when he would get into a rage, he did not care what happened. The examiner also based the determination on the Veteran’s report that he had multiple affairs and at times does not want to be around his wife, and that he leaned to doing things if it felt good. The January 2018 VA examiner determined that the Veteran’s social interaction was inappropriate most or all of the time. The examiner based the determination on the Veteran’s report that he picked fights, would say the wrong things, and act in a way he should not. The Veteran also reported that he had difficulty using appropriate language around children. Regarding orientation, the January 2018 VA examiner noted that the Veteran was occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. This finding was based on the Veteran’s report that he had gaps of time where he did not know where time went. The January 2018 VA examiner noted normal motor activity. The examiner also noted mildly impaired visual spatial orientation. This finding was based on the Veteran’s report that he was always running into things. The examiner also noted subjective symptoms including sensitivity to loud noises, a car drone, headaches, fatigue, no night vision, blurred vision and double vision while reading. The examiner noted that there were no neurobehavioral effects. The January 2018 VA examiner noted that the Veteran was unable to communicate occasionally but less than half the time. This was based on the Veteran’s statements that sometimes he was unable to find the right word or meaning and had difficulty putting sentences together. During the January 2018 VA TBI examination, the Veteran reported that he did not work and had been doing music production. The January 2018 VA examiner noted the following breakdown applied to differentiate the symptoms to the diagnoses of TBI and PTSD. The examiner determined that symptoms for TBI were as follows: difficulty with focus, concentration, headaches, dizziness, nausea, poor ability to hear due to tinnitus, loss of balance and difficulty with cognitive abilities that had not been present before the head injury occurred. The examiner noted that symptoms for PTSD included: combat related nightmares, hyper vigilance, anger, loss of ability to make connections with peers, intrusive thoughts about the war, fear and being constantly alert to potentially perceived life-threatening situations, mood fluctuations. In May 2018, the Veteran was provided with a VA TBI examination. The examiner noted that the Veteran had no complaints of impairment of memory, attention, concentration, or executive functions. The examiner also noted that the Veteran had normal judgment and was able to communicate without impairment. The May 2018 VA examiner noted that the Veteran had neurobehavioral effects that did not interfere with workplace interaction or social interaction, including complaints of irritability, being easily anxious, and avoiding large crowds. The examiner noted that those complaints were more likely due to PTSD than TBI. The May 2018 VA examiner also noted that the Veteran’s TBI was in remission. During the June 2018 hearing before the Board, the Veteran expressed dissatisfaction with the PTSD and TBI ratings being lumped into one rating. The Veteran’s wife offered testimony regarding her observations of times when the Veteran would start fights with her and would be mentally and emotionally abusive. See Transcript page 7. She also observed the Veteran starting fights with strangers in public if they happened to glance in his direction. She also observed multiple incidents where the Veteran appeared to have memory problems, not knowing what he was doing and not remembering what he had said or things he had done. She also reported observations of the Veteran’s lack of judgment and inappropriate behavior. She reported that he made inappropriate comments to his supervisors and would smack female coworkers on the rear end. The Veteran also reported that he was drunk all the time while working. Transcript page 8. The Veteran’s wife reported that when the Veteran was diagnosed in 2012 with TBI and PTSD, his behavior finally made sense. She reported that he had recently stopped drinking and that improved his behavior some but he still had difficulty managing. She reported that the Veteran had anxiety on a daily basis and experienced situations where would be out in public and have to leave a situation and go home. Transcript page 9. During the hearing before the Board, the Veteran reported that he was able to work but that he had to work from home. He reported that his manager allowed him to have a home office to make it easier for the Veteran to work. The Veteran also reported that he had not seen the results of the May 2018 VA TBI examination report but that he was not satisfied with the examination. He reported that he was in the examination for 10 minutes and was shaking, told the doctor he had to leave. He reported that the doctor told him it was not recommended that he leave and that stressed the Veteran again. Transcript page 12. When the case was before the Board in July 2018, the Board noted the stark contrast between the findings in the January 2018 and May 2018 VA examinations and directed that the Veteran be provided with additional VA examinations. In accordance with the July 2018 remand, the Veteran was provided with a VA PTSD examination in August 2018 and a VA TBI examination in October 2018. The August 2018 VA psychiatric examiner determined that it was not possible to differentiate between symptoms for TBI and PTSD. The examiner noted that the Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or work-like setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, grossly inappropriate behavior. Regarding persistent hallucinations, during the August 2018 VA examination, the Veteran reported that he heard noise, people outside, people driving by and would get paranoid and think people were following him, especially when he would drink. The August 2018 VA psychiatric examiner explained that symptoms such as irritability, sleep disturbance, and mood changes overlap and could not be delineated. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In October 2018, the Veteran was provided with a VA TBI examination. The October 2018 VA TBI examiner noted a diagnosis of cognitive disorder not otherwise specified as a residual of the Veteran’s TBI. The examiner noted that there was objective evidence on testing of moderate impairment of memory, attention, concentration and executive functions as follows: errors in delayed recall (two out of five words in five minutes with promptings), in copying of the cube, drawing the clock, multiple errors in serial 7’s, and in sentence repetition. The October 2018 VA TBI examiner also noted that the Veteran had mildly impaired judgment and that social interaction was inappropriate most or all of the time. In this regard, the examiner noted the Veteran’s reports that mood swings, frustration and irritability, headaches and resulting fatigue and apathy, had a negative impact in social, interpersonal and domestic interactions. The examiner also noted the Veteran’s reports that he had become socially isolated and withdrawn. The examiner noted that the Veteran had intermittent inappropriate laughter throughout the evaluation. The examiner noted that the Veteran’s spouse reported that the Veteran had inappropriate laughter for several years and it affected his interpersonal and social interactions. The October 2018 VA TBI examiner noted that the Veteran was always oriented to person, time, place, and situation, and that his motor activity was normal. The October 2018 VA TBI examiner noted that the Veteran had mildly impaired visual spatial orientation and explained that the Veteran reported that he would occasionally get lost in unfamiliar surroundings, and had difficulty reading maps or following directions but that he was able to use assistive devices such as GPS (global positioning system). The Veteran also reported that he could not drive on freeways and that his wife did most of the driving. Regarding subjective symptoms, the October 2018 VA TBI examiner noted that the Veteran had three or more subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family or other close relationships. Specifically, the examiner noted the Veteran’s reports of headaches, insomnia, hypersensitivity to light and loud noises, chronic fatigue and apathy. The Board notes that the Veteran is already in receipt of a separate disability rating for headaches. Regarding neurobehavioral effects, the October 2018 VA TBI examiner noted that the Veteran had one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. Specifically, the examiner noted that the Veteran reported headaches, frustration, irritability, anger issues, fatigue and apathy impair social, interpersonal and domestic life. The examiner also noted the Veteran’s wife’s report that the Veteran’s inappropriate laughter affected the Veteran’s social interaction. Regarding communication, the October 2018 VA TBI examiner noted that the Veteran had comprehension or expression, or both, of either spoken language or written language that was only occasionally impaired and that the Veteran was capable of communicating complex ideas. The examiner explained that during testing, the Veteran had errors in sentence repetition, the volume of his voice was not properly modulated and was unusually loud throughout the evaluation The October 2018 VA TBI examiner noted that there were no pertinent physical findings, such as scars, associated with the Veteran’s TBI. The examiner noted that the functional impact of the Veteran’s TBI was that he would experience moderate to severe difficulty in competitive work settings due to his impaired focus and concentration, memory/recall, headaches, chronic fatigue, mood swings and irritability, and apathy. In a March 2019 vocational rehabilitation form, the Veteran reported that his past supervisor would describe him as being out of control and unable to communicate. He also reported functional impact of his PTSD as everyday issues with anxiety, depression and functional impact of TBI as not being able to focus and having up and down impulsivity. In a March 2019 health form, the Veteran reported that his ability was limited by cognitive problems, communication problems, emotional problems, memory, ability to concentrate, balance, impulsive. Finally, the Veteran recently applied for Vocational Rehabilitation benefits from VA. On March 2019 Rehabilitation Needs Inventory, the Veteran indicated that he was requesting help guiding him through post-graduate school. He indicated he had been employed from January 2009 to the present, earning on the average $1500 per month as a part-time consultant. He indicated he was still an active consultant at the time he completed the form. After a vocational assessment, the Veteran was denied Vocational Rehabilitation benefits because VA determined he did not meet the criteria for having an employee handicap. VA treatment records indicate that the Veteran has experienced visual spatial deficits. See e.g. December 2012 and October 2016 VA treatment records. Remaining VA and private treatment records do not demonstrate worse findings than those discussed in the examination reports and lay statements above. 1. Entitlement to a rating greater than 70 percent for PTSD with TBI residuals. Pertinent to the present appeal, under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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. Id. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms; however, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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, 442-43 (2002). A veteran may only qualify for a given rating based on psychiatric disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran’s symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for the 70 percent rating. Id. When evaluating a psychiatric disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a psychiatric disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Board has considered all of the VA examination reports, treatment records, and lay statements and for the following reasons, finds that the assignment of a rating in excess of the currently assigned 70 percent (i.e., the 100 percent rating), is not warranted. The Board will discuss the propriety of separate ratings for PTSD and TBI in the section below. As noted above, for the assignment of the next higher rating, 100 percent, total occupational and social impairment must be shown. While the Board in no way calls into question that the Veteran’s PTSD manifests in serious symptoms, to include in combination with TBI symptoms which appear to largely overlap, the evidence simply does not show that the Veteran is totally impaired in both occupational and social settings, notwithstanding all symptoms discussed by his medical providers and C&P examiners above. Importantly, the Veteran has maintained the ability to carry on the basic functions of his financial consulting job since 2009. The Board recognizes that he must work from home because of his trouble working with other people in a professional setting, and as discussed below, more information is needed to determine whether his employment could even be described as “protected” given his work-at-home accommodations. Even still, a decision can be reached at this time as to whether total occupational impairment exists because it is clear from the record that the Veteran maintains the capacity to provide financial advice to others, even if in a protected work environment. A resume submitted with his Vocational Rehabilitation claim notes his specialty in behavioral finance, helping clients in terms of managing their money and psychologically mentoring them on making the right decisions. Outside of these capabilities, the Veteran represented on his resume that he is an instructor in Pa-Kua martial arts, helping individuals gain self-confidence. Socially, despite several challenges, the Veteran and his wife remain married, and work with each other on maintaining their marriage. The Veteran also identified relationships with two friends, who wrote statements on his behalf about many of the challenges the Veteran has faced, but who also expressed value in their respective friendships with the Veteran. In his work dealings, and as a martial arts instructor, the Veteran has also exhibited a degree of functional social interaction that cuts against a finding that total social impairment exists. The Veteran’s is severely inhibited socially, but total social impairment is not shown by the record. The Board has considered descriptions of behavior problems that may be described as “grossly inappropriate,” and recognizes that an August 2018 VA examiner noted the presence of symptoms that are listed as potentially associated with disability warranting a 100 percent disability rating—specifically grossly inappropriate behavior and auditory hallucinations. Notwithstanding the presence of these and other severe symptoms, the Veteran’s capabilities, both occupationally and socially, are not total in degree. In other words, such symptoms, even if present, are not so severe as to render the Veteran totally impaired. In sum, while the Veteran’s PTSD symptoms manifest in occupational and social impairment in most areas, they do not manifest in total occupational and social impairment. As such, a rating higher than the currently assigned 70 percent rating from July 22, 2013 is not warranted. The Board emphasizes that, in analyzing this claim, the symptoms identified in the Rating Formula have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating for PTSD. 2. Entitlement to a separate rating for TBI residuals from July 22, 2013 to the present. Under Diagnostic Code 8045, 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. 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. Symptoms may fluctuate in severity from day to day. Adjudicators are to evaluate cognitive impairment 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. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the Table. However, they are to 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 Table. Id. Evaluations for TBI are assigned based of the severity of ten facets related to cognitive impairment and subjective symptoms. The rating schedule provides the criteria for levels of impairment for each facet, 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 will be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation will be assigned based on the level of the highest facet as follows: 0 =non-compensable; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation will be assigned if 3 is the highest level of evaluation for any facet. The Veteran was provided with VA TBI examinations in January 2018, May 2018, and October 2018. As an initial matter, the Board notes that it remanded the claim in July 2018 because the May 2018 VA examination results were drastically different from the January 2018 VA examination results. As the May 2018 VA TBI examination report is an outlier, the Board resolves doubt and finds that the January 2018 and October 2018 demonstrate more accurate findings regarding the severity of the Veteran’s TBI residuals. The Board finds that the facets regarding the Veteran’s memory impairment, impaired judgment, social interaction, orientation, neurobehavioral effects, communication impairment are all included in the Veteran’s PTSD rating. In this regard, the VA psychiatric and TBI examiners consistently noted that the symptoms were not distinguishable. The Veteran is already in receipt of a 70 percent disability rating for PTSD with TBI residuals for symptoms manifested by memory impairment, impaired judgment, social interaction, orientation, behavioral effects and communication that overlap both disabilities. Remaining TBI facets include visual spatial orientation and subjective symptoms. Regarding subjective symptoms, the Board finds that these too are already compensated. During the October 2018 VA examination, the Veteran reported headaches, insomnia, hypersensitivity to light and loud noises, chronic fatigue and apathy. The Board finds that the separate rating for migraine headaches includes the subjective report of headaches and sensitivity to light and noise. The Board also finds that the Veteran’s subjective complaints of insomnia, chronic fatigue, and apathy are included in the psychiatric rating (see August 2018 VA psychiatric examination report which noted symptoms of sleep impairment and flattened affect as related to the psychiatric diagnosis). Resolving doubt in favor of the Veteran, the Board finds that the facet for visual spatial orientation is not compensated by the rating for the psychiatric rating or other separate ratings. Even though spatial orientation is listed as an example of a 70 percent rating criterion under the General Rating Formula for Mental Disorders, none of the VA psychiatric examiners indicated that the Veteran had “spatial disorientation” as a psychiatric symptom. However, the TBI examiners in January 2018 and October 2018 both noted visual spatial disorientation. Moreover, the Board finds that the visual spatial orientation facet is manifested by Level 1 impairment, resulting in a rating of 10 percent. In this regard, the January 2018 and October 2018 VA examiners determined that the Veteran had mildly impaired visual spatial orientation. None of the evidence of record indicates that the Veteran’s visual spatial orientation was more than mildly impaired at any point pertinent to the appeal. The Board finds that this 10 percent rating is in addition to the 70 percent rating for PTSD with TBI residuals, effective July 22, 2013. In this regard, VA treatment records support a finding that the Veteran has experienced visual spatial deficits for the entire period on appeal. See e.g. December 2012 and October 2016 VA treatment records. Notably, the Board already increased the Veteran’s rating for TBI residuals for the period prior to July 22, 2013 in its July 2018 decision. The Board has considered whether a higher rating is warranted for TBI residuals apart from the 70 percent rating for PTSD with TBI residuals but finds that it is not as the remaining TBI symptoms are contemplated by the PTSD rating as well as the separate ratings for headaches and tinnitus, and now the separate rating awarded herein for disability in visual special orientation. For these reasons, the benefit of the doubt theory has been applied to award a separate 10 percent disability rating for TBI residuals for visual spatial orientation from January 11, 2018; however, the preponderance of the evidence is against a higher rating and to this extent, the appeal is denied. REASONS FOR REMAND Entitlement to a TDIU As discussed above, during the pendency of the appeal in November 2018, the Veteran asserted that he was unemployable, in part due to consequences of his TBI. The AOJ denied the claim for TDIU in a December 2018 rating decision. Following the rating decision, the Veteran submitted additional records, and other VA records were associated with the file. These records confirm that the Veteran has been employed as a financial consultant since 2009, earning on average $1500.00 per month. The Veteran has discussed, however, the fact that his employer has allowed him to establish a home office, so he can work remotely, because of the Veteran’s difficulty working with others in a professional setting. While the Veteran is not eligible for a TDIU based on the economic components outlined in 38 C.F.R. § 4.16(a), it remains unclear if the Veteran’s employment exists on account of a protected work environment. On remand, the Veteran should be asked to supplement the record with information specific to the nature of his employment as a financial consultant, and any other employment, so that an informed decision on his appeal can be made. If the Veteran no longer wishes to pursue a claim for TDIU, he may formally withdraw it in writing at any time. The matter is REMANDED for the following action: 1. Send the Veteran requesting that he supplement the record with information pertaining to his employment as a financial consultant. The Veteran should be asked to complete and return VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. For employment that the Veteran considers to be marginal, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 2. Readjudicate the claim for entitlement to a TDIU, after taking any other steps deemed necessary to develop the claim. If the benefit sought remains denied, in whole or in part, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.