Citation Nr: 21000778 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-24 004 DATE: January 6, 2021 ORDER Entitlement to an initial disability evaluation in excess of 50 percent prior to September 26, 2015, and in excess of 70 percent on and after September 26, 2015 for service-connected posttraumatic stress disorder (PTSD), chronic with alcohol abuse, and traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. Prior to September 26, 2015, the severity, frequency, and duration of the symptoms of the Veteran’s PTSD, chronic with alcohol abuse, and TBI were characterized by occupational and social impairment with reduced reliability and productivity. 2. On and after September 26, 2015, the severity, frequency, and duration of the symptoms of the Veteran’s PTSD, chronic with alcohol abuse, and TBI are characterized by occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial disability evaluation in excess of 50 percent prior to September 26, 2015, and in excess of 70 percent on and after September 26, 2015 for service-connected PTSD, chronic with alcohol abuse, and TBI have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.126, 4.130, Diagnostic Code 9434-9400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2004 to September 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). In an August 2011 rating decision, The RO granted service connection for PTSD and assigned a 30 percent rating, effective April 6, 2010. In a July 2012 rating decision, the RO granted service connection for TBI and assigned a zero percent disability rating, effective April 5, 2010, and continued the Veteran’s 30 percent disability rating for PTSD. The RO explained that it granted a noncompensable rating for TBI because many facets being assessed under the TBI criteria were already evaluated under the PTSD rating criteria, which yielded a higher rating than if they were rated under the TBI diagnostic code (DC 8045). In a January 2014 rating decision, the RO continued the 30 percent evaluation for PTSD, with chronic alcohol abuse, and did not address TBI. In a November 2016 rating decision, the RO combined PTSD and TBI and rated both disabilities under the PTSD rating criteria (DC 9411) and recharacterized the issue as an increased evaluation for PTSD, chronic with alcohol abuse and TBI. In that rating decision, the RO increased the Veteran’s disability rating from 30 percent to 50 percent from April 5, 2010, and from 50 percent to 70 percent beginning from September 26, 2015. TBI is not currently listed as a separately rated disability. The Veteran testified before the undersigned Veterans Law Judge in a June 2018 hearing. This issue was previously before the Board in September 2018, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the September 2018 remand instructions. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial disability evaluation in excess of 50 percent prior to September 26, 2015, and in excess of 70 percent on and after September 26, 2015 for service-connected PTSD, chronic with alcohol abuse, and TBI Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Here, the Veteran filed his claim for service connection for PTSD in April 2010. Therefore, the relevant time period is from April 2010. The Veteran’s service-connected psychiatric disabilities with TBI are rated under 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, the Veteran’s current 50 percent evaluation contemplates 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 evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships.  A 100 percent evaluation is warranted for a mental disorder 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9411.  When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the Veteran’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. 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).  The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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 (2002).  “[A] veteran may only qualify for a given disability rating under § 4.130 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). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. 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. 38 C.F.R. § 4.126. During the appeal period, the Veteran underwent VA examinations in June 2010, May 2012, September 2015, October 2019, and July 2020, and attended regular VA therapy sessions. At the June 2010 VA examination, the Veteran reported that while he had withdrawn from his wife and children after returning from Iraq, and was irritable and argumentative, he had recently made more of an effort to spend quality time with them by taking them to the park or cinema. He stated that although he had a good relationship with his mother and his 8 older siblings, he had little motivation to socialize, and he did not go with his wife to see her family. He reported that he preferred to stay at home to avoid crowds, and that if he had to go shopping, he would go at midnight when stores were empty. The Veteran explained that he worked for a tire company where he got into terrible arguments with his boss, but his boss was understanding of his condition. He reported that he never got physical at home or work, but he was worried that he would eventually lose his temper and strike someone. The Veteran explained that at home he liked to sit in the yard by himself, would often recheck locks on doors, and even return home after leaving to make sure he closed the garage door. He stated that he would put off going to bed, he had difficulty falling and staying asleep, and would wake from nightmares about combat, feeling tremulous, short of breath, and having a cold sweat. The examiner noted that during the interview, the Veteran was a reliable historian, correctly oriented for time, place, person, and purpose, that he was clean and neatly and appropriately dressed and groomed, mature, pleasant, cooperative, well-motivated, and maintained good eye contact. The examiner described the Veteran’s mood as euthymic, and that while impaired impulse control was not demonstrated during the interview, it was clearly described as a main concern in the form of unprovoked irritability. There was no history of panic attacks or suspiciousness of individual persons, although the Veteran did report that he was suspicious of strangers in crowds where he could not see what they were doing. The examiner noted that there was no history of delusions or hallucinations, and that the only obsessive behavior was the unrealistic rechecking of locks and the garage door. The Veteran’s speech was spontaneous, coherent, clear, and well-modulated, with no circumstantial or pressured speech. The examiner noted that the Veteran’s answers were logical and relevant, that his concentration was fair, that his thought processes were organized and goal directed, and that his judgment was good. The examiner did note that the Veteran’s abstract thinking was poor, but attributed that to the Veteran’s Spanish being stronger than his English. The Veteran reported no suicidal or homicidal ideation. The examiner concluded that the Veteran was able to manage payments, that there was no difficulty performing activities of daily living, and that there was occupational and social impairment with some anxiety, depression, and sleep impairment, with no difficulty following commands. The Veteran underwent a May 2012 VA examination to assess his TBI. There, the examiner endorsed objective evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The examiner found that the Veteran had normal judgment, social interaction was routinely appropriate, and that he was always oriented to person, time, place, and situation. The examiner found three or more subjective symptoms that mildly interfere with work. The examiner also found one or more neurobehavioral effects that occasionally interfere with workplace or social interaction, but do not preclude them. The Veteran reported that his forgetfulness and temper causes problems at work. The examiner concluded that without resorting to mere speculation, they could not distinguish between the psychiatric disability and TBI symptoms because they frequently overlap. The Veteran also underwent a separate VA examination in May 2012 to assess his psychiatric disabilities. There, the Veteran reported a strained relationship with his wife due to his irritability and emotional detachment, and that he treated his children like soldiers, but that his relationship with his family was great and he regularly spent time with them. He stated that he had no friends, and he avoided crowded places. The Veteran explained that he liked to watch television, and did not describe an overall loss of interest in leisure activities. The Veteran endorsed symptoms of depressed mood, anxiety, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He also denied suicidal or homicidal ideation. The examiner described the Veteran as having a euthymic mood with an appropriate affect, and that he was polite and cooperative. The examiner determined that there was occupational and social impairment with occasional decrease in work efficiency, and that the Veteran was capable of managing his financial affairs. And finally, the examiner concluded that they were unable to differentiate, without resorting to mere speculation, the emotional and behavior symptoms of the psychiatric disabilities and TBI given the symptom overlap and interactional effects. Starting in July 2013, the Veteran began attending semi-regular VA therapy sessions. During these sessions, the Veteran generally reported continued anxiety and irritability. The examiners generally described the Veteran as dressed appropriately and well-groomed, and that he was alert and oriented. They also generally reported his speech as spontaneous, coherent, relevant, congruent with mood, and with normal volume and rate. The examiners also generally found his attention to be normal, his memory and immediate recall to be intact, his intellect to be average, his thought process to be logical, coherent and goal-directed, with no formal thought disorders. The Veteran generally denied hallucinations, illusions, delusions, obsessive thoughts, paranoia, and suicidal or homicidal ideation. During July and August 2013 sessions, the examiners noted that the Veteran’s judgment and insight appeared to be good. At a September 2013 session, the Veteran reported that he was frequently feeling anxious, easily irritated and angry, and that he did not have any friends. He also reported that he checked all the doors, windows, and cars in his home at least three times per night. During an October 2013 session, the Veteran indicated that he had not seen a big difference in his mood, although he was quick to take a step back and apologize when he experienced angry outbursts. He again relayed his routine of rechecking doors, windows, and cars in the house, and that he still did not socialize. The examiner found his insight, judgement, and impulse control to be fair. At a November 2013 session, the Veteran reported that he continued to have angry outbursts at home and at work and that was causing friction with his wife, but that his reaction was immediate and apologized for overreacting. The Veteran denied that his outbursts were ever physical. He also stated that he was experiencing less frequent nightmares. The examiner found his insight, judgment, and impulse control to be fair. During a December 2013 session, the Veteran reported that he drank alcohol daily. He also stated that he had recently pawned his watch and gun for Christmas money, and that it reminded him of when he lost his house and car due to being unable to make the payments. During an April 2015 session, the Veteran complained of continued difficulty sleeping, and nightmares about the military. He continued to self-isolate, and was feeling more anxious and irritable, but he denied physical outbursts. The Veteran also reported that he had an improved relationship with his sons. The examiner deemed his insight and judgment to be fair, and his impulse control to be intact. At a June 2015 session, the Veteran again reported feeling irritable and that he had several angry outbursts at home, but he maintained that his children are his priority. He stated that he was working two jobs that were wearing him down, and that he drank every night after work. The examiner again found his insight and judgment to be fair, and that his impulse control was intact. The Veteran underwent a new VA examination in September 2015. There, the Veteran reported that he was not sleeping much, and was dependent on alcohol. He stated that he was feeling anxious and depressed, and that in the previous week he had contemplated suicide by going to the train tracks near his house, but ultimately his children keep him from hurting himself. He endorsed multiple symptoms, including depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting ability to function, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, obsessional rituals that interfere with routine activities, impaired impulse control such as unprovoked irritability with periods of violence, and persistent danger of hurting self or others. The examiner described the Veteran as having a depressed effect with an anxious presentation, and that he began trembling and sweating while being asked questions. The examiner also determined that they were not able to differentiate to any degree of medical certainty between the psychiatric disabilities and the TBI due to the overlap in symptoms. They also found the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. During a September 2015 VA therapy session, the Veteran reported that he was still feeling irritable, and that his alcohol intake had gone up considerably. He stated that he had recently had a bad argument with his wife that upset the kids, that he was angry about being passed off for a promotion at work, and that he had recently contemplated suicide. The examiner found his insight and judgment to be poor to fair. At a November 2015 session, the Veteran reported no major improvement in his mood, that he was still irritable and had weekly anger outbursts and arguments with his wife, and that he was still drinking regularly. His work schedule was challenging, working one job five days a week, and another six days a week. He denied suicidal ideation, stating that he would never do that to his family. The examiner found his insight and judgement to be fair. At a February 2016 session, the Veteran reported that he was feeling stressed and depressed, and that he had quit his job in October or November. He stated that he was still drinking to self-medicate nightly, but that his wife was supportive of him. He also reported that his nightmares and anxiety were fluctuating with severity and frequency. The examiner found his insight and judgment to be fair. During an April 2016 session, the Veteran reported feeling okay mostly, but that he was stressed financially and emotionally. He stated that his dreams had been more vivid, but that he could not remember them. He also indicated that he had some outbursts, but that he was able to handle them. The Veteran stated that he was feeling better, that work was stable, and he was getting along with his children, but he had to cut back on going outside due to the financial strain. He still reported drinking nightly. The examiner found his insight and judgment to be poor to fair. At an August 2016 session, the Veteran stated that he had gotten very irritable and anxious, and that he had gotten into arguments with others that almost came to blows, but that he walked away. He stated that he continued to drink daily. At an October 2016 session, the Veteran reported that his mood was stable, that work was going well, he had slowed down on drinking, his sleep and appetite were fair, and that his relationship with his kids and wife was improving. The examiner found his insight and judgment to be poor to fair. August 2017 VA treatment records indicate that the Veteran admitted to heavy alcohol intake, but continued to deny suicidal and homicidal ideation. September 2017 VA treatment records stated that the Veteran reported that everything was going fine, that he was not feeling as irritable, and that his nightmares had lessened. At a September 2017 VA therapy session, the Veteran reported that he avoided crowds to cope with his PTSD. He stated that he was feeling irritable towards his family, which made him feel very bad, and isolate himself, although his wife was still supportive. He asserted that he was drinking less than he used to, and that he no longer binged alcohol on the weekends. He also stated that his living situation was stable. The examiner found his insight and judgment to be fair. Additional September 2017 VA treatment records reflect the results of depression and anxiety screenings. The Veteran endorsed that nearly every day in the last two weeks, he had little interest or pleasure, felt down, had trouble sleeping, had motor retardation, had agitation, was unable to stop or control worrying, worried too much about different things, had trouble relaxing, felt restless, was easily annoyed or irritable, was afraid something awful might happen, and was feeling nervous, anxious, and on edge. The Veteran endorsed that several days in the last two weeks, he had a poor appetite, had trouble concentrating, and had feelings of failure or guilt. And more than the half the days in the last two weeks, the Veteran reported feeling tired. At his June 2018 Board hearing, the Veteran reported that he did not socialize with anybody, and that he could not function properly with crowds due to the anxiety. He stated that at work he had difficulty speaking with customers due to feeling aggravated, snappy, and being unable to get the words out; however, he stated that work was structured so that he did not have a lot of interaction with other people. He asserted that his boss would not promote him or give him a chance to do something else. The Veteran asserted that he has difficulty going to new and different places, and that he keeps a routine. His wife testified that he feels like somebody was going to come at him, and that he was always watching and observing. She stated that when he is feeling down, he feels that there is no point in continuing and that he had harmed himself a couple of times, but the Veteran stated that his kids and wife are what keeps him going. His wife reported that the Veteran has difficulty sleeping before everyone else is asleep, and that he always checked the doors at any little noise he heard. In August 2018, the Veteran sent a message to the President, seeking help, and threatening to commit suicide. September 2018 VA treatment records reflect the results of depression and anxiety screenings. The Veteran endorsed that nearly every day in the last two weeks, he had little interest or pleasure, felt down, had trouble sleeping, had a poor appetite, had trouble concentrating, had motor retardation, had agitation, was unable to stop or control worrying, worried too much about different things, had trouble relaxing, felt restless, became easily annoyed or irritable, and was afraid something awful might happen. The Veteran endorsed that several days in the last two weeks, he felt nervous, anxious, or on edge. And more than the half the days in the last two weeks, the Veteran reported feeling tired. January 2019 VA treatment records reflect the results of depression and anxiety screenings. The Veteran endorsed that nearly every day in the last two weeks, he had little interest or pleasure, felt down, felt tired, had feelings of failure or guilt, had trouble concentrating, had motor retardation, had agitation, felt nervous, was unable to stop or control worrying, worried too much about different things, had trouble relaxing, felt restless, became easily annoyed or irritable, and was afraid something awful might happen. And more than the half the days in the last two weeks, the Veteran reported that he had trouble sleeping, and a poor appetite. The Veteran did report that in the past two weeks, he did not think that he would be better off dead or hurting himself. As per the September 2018 Board remand instructions, the Veteran underwent a new VA examination in October 2019 to assess his TBI. The examiner found objective evidence of testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The examiner also found the Veteran had some mild difficulty following conversations and recalling them, and remembering names of new acquaintances. The Veteran reported having some word-finding difficulty and misplacing items. The examiner noted that the Veteran had problems with attention and concentration, and executive functions such as planning. The examiner found the Veteran to be oriented to person, time, place, and situation. The examiner found motor activity, and visual spatial orientation to be normal. The examiner noted that the Veteran is irritable at times, and has experienced verbal and physical aggression at work. The Veteran reported that one time when he felt his boss was on his case, he went to the back and beat on some tires. The Veteran also reported that he has impulsively purchased things. The examiner found his consciousness to be normal, and noted that the Veteran was able to communicate and comprehend spoken and written language. The examiner determined that the residuals of the TBI do not impact his ability to work. The examiner stated that due to the presence of overlap, the relative contribution of each disorder to the patient’s symptoms could not be determined without resorting to mere speculation, and that it was not possible to differentiate what symptom is attributable to each diagnosis. The Veteran underwent a new VA examination in July 2020 to assess his psychiatric disabilities. There, the Veteran reported that he had reduced his alcohol use due to his new job as a bus driver, and that his smoking habit helps him to not drink. He stated that one time while driving a bus, a passenger was standing behind him, so he called the police, and his supervisor came instead and wrote him up. He reported that he gets lost and late on the bus routes, and seeing dead animals on the side of the road reminds him of memories of his deployment. He also stated that he drives the bus in the middle of the street to avoid what is along the sides. The Veteran reported that he declines offers to socialize, that his coworkers comment on his irritability, and that he only leaves the house to go to the store or to work. He stated that he avoids speaking with his boss. He also asserted that he has distressing dreams most nights, and he will wake up sweating, twitching, and jumping, believing that the dream was real. The Veteran stated that he used to enjoy playing video games and working on cars, but that he no longer does. The Veteran endorsed multiple symptoms, including depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting ability to function, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work, and neglecting his personal appearance and hygiene. He also denied suicidal and homicidal ideation. The examiner noted that the Veteran was dressed casually in cut up clothing, and was not groomed. The Veteran had a blunted affect with a despondent mood, and spoke in monotones and short answers. The examiner also observed that the Veteran stood up to protect his back during the examination. The Veteran was oriented to person, time, place, and purpose, and did not exhibit any evidence of thought disorders. The examiner stated that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner opined that it was possible to differentiate what symptoms are attributable to the TBI and non-TBI mental health diagnoses. They attributed the memory, attention, concentration, executive functions, visual spatial orientation, and neurobehavioral effects symptoms to the TBI, and attributed the judgment, social interaction, and consciousness symptoms to the non-TBI mental health diagnoses. Evaluation prior to September 26, 2015 Prior to September 26, 2015, the Board finds that the Veteran’s service-connected PTSD, chronic with alcohol abuse and TBI have more nearly approximated the 50 percent evaluation. The record demonstrates that the Veteran had occupational and social impairment with reduced reliability and productivity due to these symptoms. During this period, the Veteran had no friends. He had anger issues, and a history of impulsive blow ups with his wife and his boss. He was frequently irritable, depressed, and anxious. The Veteran regularly reported difficulties sleeping, and experiencing nightmares that woke him. The Board finds that that a 70 percent evaluation is not supported for this period as the evidence does not show occupational and social impairment with deficiencies in most areas. Initially, the examiners noted good or fair judgment throughout the appeal period. The Veteran’s thoughts were noted to be logical and goal-directed. Although he was irritable with his wife and children, he spent time with them and also expressed having a great relationship with his mother and older siblings. He maintained his hygiene and appearance. While the Veteran reported needing to recheck doors, windows, and cars, the evidence did not show that these rituals interfere with routine activities. In fact, in June 2015, the Veteran reported that he was working two jobs. Although the Veteran mentioned his blow ups with his wife, boss, and children, during VA therapy sessions such as in October 2013, he stated that he was able to quickly take a step back and apologize for overreacting. Examiners mentioned that although he was depressed or anxious, he was always alert and oriented, and his speech was always clear and logical. The Veteran also stated that he would never hurt himself because his children are what keep him going. The Board finds that the Veteran’s symptoms are more approximately contemplated by the 50 percent rating criteria during this period. Accordingly, entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD, chronic with alcohol abuse, and TBI prior to September 26, 2015 is denied. Evaluation on and after September 26, 2015 On and after September 26, 2015, the Board finds that the Veteran’s PTSD, chronic with alcohol abuse and TBI have not more nearly approximated the 100 percent evaluation. At his September 2015 VA examination, the Veteran expressed suicidal ideation, stating that he had recent and persistent thoughts of ending his own life by going to the nearby train tracks. He also sent a message to the President threatening to end his own life in August 2018. During the July 2020 VA examination, the examiner stated that the Veteran’s erratic behavior while driving the bus implies reckless impaired judgment. He also stated that he tries to avoid his new boss, and is known for being irritable with coworkers. At his October 2019 VA examination, he described an incident where he was frustrated with his boss at his previous job, and he went in the back to punch a bunch of tires. At his June 2018 Board hearing, the Veteran’s wife testified that he is always checking doors at any little noise he hears. This suggests that his compulsive behavior regarding rechecking doors and windows has increased in frequency and severity. While examiners at his VA therapy sessions regularly described the Veteran as appropriately dressed, neatly groomed, and euthymic in mood, the July 2020 examiner stated that he was wearing cut up clothing, that he was ungroomed, and that he had a blunted affect with a despondent mood. The record shows that the Veteran was able to secure a new job that he was happier with. Although his relationship with his immediate family was rough at times, and he did not have any friends, he has spoken repeatedly of improving his relationship with his children, and of how supportive his wife is of him. VA examiners always described him as alert and oriented, and that his speech is always clear and logical. The record does not show gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, or his own name. Accordingly, the Veteran’s symptomatology is not severe to the degree contemplated by the 100 percent criteria. Accordingly, entitlement to an evaluation in excess of 70 percent for service-connected PTSD, chronic with alcohol abuse, and TBI on and after September 26, 2015 is denied. The Board notes that, as the Veteran’s TBI symptoms are rated together with the symptoms of PTSD under Diagnostic Code 9411, it has considered whether his TBI should be separately rated. Under Diagnostic Code 8045, which provides for the evaluation of TBI, 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. In a given individual, 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.” 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 titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 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 “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Adjudicators are 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. When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Adjudicators are 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 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. 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, adjudicators are to evaluate under the most appropriate Diagnostic Code. Adjudicators are to evaluate each condition 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. After review of the evidence, the Board finds that the Veteran has no additional residuals of a TBI that are subject to a separate compensable rating under Diagnostic Code 8045, other than the psychiatric disabilities for which the Veteran is already in receipt of a compensable rating discussed above. As outlined above, the Veteran was afforded multiple VA examinations to determine the nature and severity of his PTSD, chronic with alcohol abuse, and TBI. During each examination, the examiner was also asked whether it was possible to differentiate between symptoms attributable to a TBI and those attributable to the Veteran’s psychiatric disabilities. With the exception of the July 2020 examination, each examiner opined in the negative, explaining that the symptoms of TBI and PTSD often overlap. While the July 2020 examiner was able to differentiate between the symptoms, all of the symptoms attributed under the TBI criteria are already evaluated under the PTSD rating criteria, which yields a higher rating than if they were rated under the TBI diagnostic code. Only the Veteran’s mental disorder was noted to be a compensable residual of his TBI. Therefore, assigning a separate compensable rating for any of the Veteran’s symptoms here would violate the rule against pyramiding by compensating the Veteran twice for the same symptoms. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). As such, the preponderance of the evidence is against assignment of a separate compensable rating for TBI residuals under Diagnostic Code 8045. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8045. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.