Citation Nr: 21064807 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-08 369 DATE: October 21, 2021 ORDER Entitlement to an initial increased rating of 70 percent, but no higher, for residuals of a traumatic brain injury (TBI) prior to December 19, 2013 is granted. Entitlement to an increased rating greater than 70 percent for residuals of a TBI from December 19, 2013 is denied. Entitlement to an initial increased rating of 30 percent, but no higher, for headaches prior to December 19, 2013 is granted. Entitlement to an increased rating greater than 30 percent for headaches from December 19, 2013 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 19, 2013 is granted. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's TBI residuals included objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. His TBI residuals have not been characterized as greater than "Level 3," or total, in any facet. 2. Throughout the entire appeal period, the Veteran's headaches resulted in characteristic prostrating attacks occurring more than once a month; they have not been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Prior to December 19, 2013, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for residuals of a TBI prior to December 19, 2013 have been met. 38 U.S.C. § 1155 (2019); 38 C.F.R. §§ 4.124a, Diagnostic Code 8045 (2020). 2. The criteria for a disability rating greater than 70 percent for residuals of a TBI from December 19, 2013 have not been met. 38 U.S.C. § 1155 (2019); 38 C.F.R. §§ 4.124a, Diagnostic Code 8045 (2020). 3. The criteria for an initial disability rating of 30 percent, but no higher, for headaches prior to December 19, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124, Diagnostic Code 8100 (2020). 4. The criteria for a disability rating greater than 30 percent for headaches from December 19, 2013 have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124, Diagnostic Code 8100 (2020). 5. The criteria for entitlement to TDIU prior to December 19, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to March 1972. He appeals a November 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to a compensable initial rating for headaches and an initial rating greater than 10 percent for TBI residuals. During the appeal period, the AOJ increased the Veteran's TBI rating to 70 percent and headache rating to 30 percent, both effective December 19, 2013. See February 2015 rating decision. Also before the Board of Veterans' Appeals (Board) is entitlement to TDIU. Originally, the Veteran requested a Board hearing for his claims. See February 2015 VA Form 9 and correspondence. However, the Veteran withdrew his hearing request in March 2018. See March 2018 VA Form 27-0820. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). In June 2018, the Board granted entitlement to TDIU from December 19, 2013 and remanded the remaining issues. Again, in July 2021, the Board remanded for further development. The appeal is now back before the Board. Increased Ratings Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. TBI The record reflects the Veteran's residuals of TBI include severe headaches and memory loss, headaches, irritability and concentration, among other symptoms. Diagnostic Code (DC) 8045 provides for the evaluation of TBI residuals. See 38 C.F.R. § 4.124A. There are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: (1) cognitive (which is common in varying degrees after TBI), (2) emotional/behavioral, and (3) physical. Each of these areas of dysfunction may require evaluation. The criteria also provide that when there is a separate disability residual with a distinct diagnosis that may be evaluated under another DC, a separate rating may be assigned even if the symptoms are subjective. Here, the Veteran's headaches under DC 8100 are addressed in the "Headaches" section below. Therefore, the only symptoms not already accounted for that are attributable to his in-service TBI are cognitive, neurobehavioral effects, and subjective symptoms. His TBI residuals are currently rated at 10 percent disabling prior to December 19, 2013 and 70 percent thereafter under DC 8045. As explained below, the Board finds that the evidence supports a 70 percent rating, but no higher, for objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. 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. VA evaluates 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. 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, 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. Emotional/behavioral dysfunction is evaluated under §4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" is used to evaluate cognitive impairment and subjective symptoms. It contains 10 facets of TBI related to cognitive impairment and subjective symptoms. Each facet is to be assigned a number ranging from 0 to 3 and a level 5, which is total impairment. Zero (0) represents a normal finding. When there is no 'total' facet finding, the rater is to assign the overall percentage evaluation based on the level of the highest facet. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. DC 8045 makes clear that if no facet is evaluated as 'total,' assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any of the 10 facets. 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" TBI, which may appear in medical records, refer to a classification of a TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. Pertinent to this case, the facets of cognitive impairment and other residuals of TBI not otherwise classified resulting in impairment of memory, attention, concentration, executive functions are evaluated based on levels of severity under DC 8045. 0 equals no complaints of impairment of memory, attention, concentration, or executive functions; 1 equals a complaint of mild loss of memory (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; 2 equals objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; 3 equals objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. A total evaluation equals objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Here, the Veteran was first afforded a June 2012 VA examination where the Veteran stated he had short-term memory loss, but the VA examiner conducted no neuropsychological testing and, therefore, concluded the Veteran only had "a complaint of mild memory loss... without objective evidence on testing." As noted, however, the VA examiner conducted no testing. Similarly, an April 2021 VA examiner's findings reached the same conclusion but also did not conduct any testing. Thus, these examinations are of limited probative value in this regard. Next, the Veteran was afforded a psychological evaluation in December 2013. There, Dr. M.R. completed a psychological evaluation of the Veteran and reviewed his casefile along with conducting numerous neuropsychological testing. After the evaluation, Dr. M.R. concluded objective testing reflected moderate impairment of his memory, attention, and concentration demonstrating moderate functional impairment. Dr. M.R. noted the Veteran "frequently forgets where he is traveling to, forgets important names and dates, and seems oblivious to various social settings where he acts grossly inappropriate." He further noted that on testing, the Veteran "often lost his place" and had to be told where he missed items. Such impairment correlates to a "Level 3" impairment under the memory, attention, and executive functions facets. In April 2014, a VA examiner conducted neuropsychological testing and similarly found the Veteran suffered from moderate impairment of memory, attention and concentration resulting in moderate functional impairment. This level of impairment is corroborated by the record. For example, in a March 2017 letter, the Veteran noted his wife told the December 2016 VA examiner he gets lost in his own town. Therefore, the Board finds that the Veteran's cognitive symptoms attributable to TBI amount to a "Level 3" impairment under the memory, attention, and executive functions facet under DC 8045. Thus, a 70 percent rating, but no higher, for residuals of TBI under DC 8045 is warranted. A rating in excess of 70 percent is not wanted unless the Veteran exhibited total impairment in any of the following facets: judgment, orientation, motor activity, visual spatial orientation, communication, or consciousness. 38 C.F.R. § 4.124A, DC 8045. Total impairment of judgment includes severely impaired judgment that results in the inability to make a reasonable decision and understand the consequences of routine and familiar decisions such as being unable to determine appropriate clothing for the weather or avoid dangerous situations. Total impairment of orientation requires consistent disorientation to at least two of the following: person, place, time, and situation. Total impairment of motor activity requires severely decreased motor activity due to apraxia. Total impairment of visual spatial orientation reflects severe impairment such that a veteran may be unable to touch or name his own body parts or be able to move from room to room in a familiar environment. Total impairment of communication reflects the complete inability to communicate either by spoken language and/or written language. Finally, total impairment of consciousness means a veteran is persistently in an altered state of consciousness, such as a vegetative state or coma. Id. In this Veteran's case, neither Dr. M.R. nor any VA examiner concluded the Veteran suffered from total impairment in any facet. See December 2013 Dr. M.R. examination report; April 2014 VA examination report. Overall, Dr. M.R. noted the Veteran's symptoms amounted to "Level 3" impairment for the facets of memory, social interaction, and visual spatial orientation, with lower levels of impairment for all other facets. He found the Veteran's TBI symptoms created moderately severely impaired visual spatial orientation as the Veteran was generally unable to use a GPS and "gets lost even in familiar settings." Id. The April 2014 VA examiner noted the Veteran's TBI symptoms amounted to "Level 3" impairment only for the memory, attention, concentration, and executive function facet, and no others. Other testing of record reflects the Veteran does not have total impairment in any facet and medical records do not suggest that any of the Veteran's symptoms reach this level of total impairment. As such, the Board finds the criteria for a "Level 3" rating in the memory, attention, and executive functions facet, has been met for the entire appeal period. Thus, the Board grants an initial disability rating of 70 percent, but no higher, for residuals of a TBI prior to December 19, 2103. However, a disability rating greater than 70 percent from December 19, 2013 is denied. Headaches The Veteran's service-connected headaches are currently rated as noncompensable prior to December 19, 2013 and 30 percent thereafter. He contends the severity of his headaches entitles him to a higher rating under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a 10 percent is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. VA regulations do not define "prostrating." By way of reference, the Board notes that according to Webster's New World Dictionary of American English, Third College Edition (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." Of record are four VA examinations and numerous medical records reflecting the severity of the Veteran's headache symptoms. During the entire appeal, the Veteran reported suffering from two types of headaches. The first is a severe sharp pain on the right side of his head that lasts anywhere from under an hour to multiple days. See, e.g., June 2012 and April 2021 VA examination reports; September 2021 Veteran headache journal; September 2017 Dr. L.C. medical opinion. The Veteran contends these right-sided headaches have grown shorter in duration with the help of prescribed medication, but have remained the same level of frequency and severity since his in-service TBI. See, e.g., September 2021 Veteran headache journal. During the appeal period, the Veteran noted these right-sided headaches occurred more than three times a month. See, e.g., April 2014 VA examination report (weekly headaches that "mess up his vision"); January 2014 K.O. letter (headaches "three or more times every month"); March 2020 VA treatment records (right-sided headaches "occur about three times a month" lasting a few hours); April 2021 VA examination report. The second type of headache is what the Veteran describes as cluster or pressure headaches. The record reflects these headaches began during the appeal period and, over time, have increased in frequency and severity. Id.; see also December 2017 VA treatment records (pressure headaches); March 2018 VA treatment records. It is unclear from the record when these headaches began. December 2017 VA treatment records reflect the Veteran stated symptoms began in "late March" of 2017, but in March 2018 the Veteran noted "pressure headaches started two years ago, but did not get worse" until a year ago when the Veteran suffered multiple syncope spells and was hospitalized. See March 2018 VA treatment records. At a July 2017 evaluation by Dr. L.C., the Veteran reported he had 9 out of 10 head pain that included "incredible pressure and squeezing" that led to nausea and vomiting "at least" once a month. See September 2017 Dr. L.C. medical opinion. Dr. L.C. concluded the Veteran's headache symptoms had increased in severity after reviewing his record. Id. Based on review of the record, the Board agrees the Veteran's headaches increased in severity around 2017 with the addition of the second type of headache. However, the record reflects the Veteran suffered from prostrating headaches at least once a month during the entire appeal period. See June 2014 VA treatment records. For example, at the April 2014 VA examination, the Veteran reported once a month he had a headache with 9 out of 10 pain lasting half a day. February 2015 VA treatment records reflect the Veteran had small headaches three times a month and one severe headache each month. The only record reflecting the Veteran's headache symptoms prior to December 19, 2013 is from a June 2012 VA examination report. There, the June 2012 VA examiner noted the Veteran had prostrating attacks every other month. However, the Veteran has competently reported his right-sided headaches have not changed in severity or frequency since his in-service TBI. As such, the Board provides the Veteran the benefit of the doubt and finds he meets the criteria for a 30 percent rating prior to December 19, 2013 for suffering from prostrating attacks at least once a month during the entire appeal period. However, the Board finds the Veteran does not meet the criteria for the next highest rating, 50 percent, as his symptoms do not meet the criteria for very frequent, completely prostrating headaches that produce severe economic inadaptability. First, the Veteran stated his right-sided headaches have not increased in frequency or severity since his in-service TBI. See April 2014 VA examination report; March 2020 VA treatment records; August 2021 headache journal. After service, the Veteran obtained a degree in accounting, worked as a purchasing agent for South San Antonia School District from 1977 to 1980, then became an internal auditor for six years at a hospital before serving as chief financial officer (CFO) until his retirement in February 2012. See April 2014 VA examination report. Thus, the Veteran did not have severe economic inadaptability as he worked full-time while suffering from right-sided headaches. Second, the Veteran's pressure headaches began around 2017 and undoubtedly increased the number of prostrating episodes suffered by the Veteran; however, the record does not reflect his episodes were completely prostrating or prolonged. For example, in September 2021, the Veteran provided a comprehensive headache journal from June 2019 through December 2019 that noted the duration, pain, and intensity of the Veteran's very frequent headaches. One day in June, the Veteran noted a severe pressure headache of "8.5++ out of 10 pain" that required rest, but the Veteran attended physical therapy for his neck and cervicalgia. Again, in September 2010, the Veteran reported severe symptoms but attended physical therapy. Thus, although the Veteran reported near-daily headaches, he attended numerous VA appointments during his journaled months, which suggests his headaches were either not prolonged or not completely prostrating. Then at a March 2020 VA neurology appointment, the Veteran stated he had three right-sided headaches a month lasting only "a few hours;" whereas, his pressure headaches occurred constantly but were mostly a "4 or 5 out of 10" on the pain scale. See March 2020 VA treatment records. This further suggests the lack of prolonged, completely prostrating headaches. The Veteran's headache journal confirms the Veteran suffers from very frequent headaches with varied symptoms. For example, the Veteran calculated he had thirteen headaches a month that spanned eighteen days from June to December 2019, with an average of three and a half days a month suffering from 9 out of 10 pain. The Veteran noted "nausea accompanied [his] headaches over 90 percent of the time" and he had two accompanying dizzy spells. The record also reflects the Veteran suffers from diplopia and sensitivity to light and sound during headaches. See April 2021 VA examination report. The Board recognizes the Veteran has very frequent headaches with severe symptoms at times. However, these headaches are not prolonged and completely prostrating to the severity they meet the criteria for a 50 percent rating. As the Veteran noted, only three and a half days a month do his headaches result in 9 out of 10 pain. Further, the Veteran recorded his need for rest during his journaled headaches, which would indicate a completely prostrating attack; however, these completely prostrating attacks were infrequent. See June 2019 journal entry. Instead, as noted above, the record reflects the Veteran took medication to prevent his headaches from becoming completely prostrating and continued to attend numerous appointments on days of severe headaches. Thus, the record reflects the Veteran's headaches are very frequent; however, the record does not reflect his headaches are very frequent completely prostrating and prolonged, capable of producing severe economic inadaptability. Based on the above, the Board grants entitlement to an initial disability rating of 30 percent, but no higher, for the Veteran's headaches prior to December 19, 2013, but denies a rating greater than 30 percent thereafter. TDIU In June 2018, the Board granted entitlement to TDIU from December 9, 2013; however, this was only part of the appeal period. When a veteran appeals for a higher disability rating and it is coupled with evidence of unemployability, the issue of entitlement to TDIU is raised for the entire appeal period. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Therefore, as the issue of entitlement to TDIU has been raised and not granted in full, the period prior to December 19, 2103 is still on appeal and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Pursuant to the Order above, the Veteran now has a combined rating of 80 percent throughout the appeal period with TBI independently rated as 70 percent disabling; thus, he meets the schedular criteria for the entire appeal period. As such, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran is currently service-connected for thoracic spine degenerative joint disease rated at 20 percent disabling in addition to TBI and headaches. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Additionally, "substantially gainful employment" is 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). The record reflects the Veteran served as an aviation support equipment technician in the Navy from June 1968 to March 1972. See DD Form 214. After service, he obtained a degree in accounting and then worked for the South San Antonio School District as a purchasing agent from 1977 to 1980. See April 2014 VA examination report. In 1980, the Veteran worked as an internal auditor for Tuba City Regional Health Care Corporation, then served as CFO until his retirement in February 2012. Id. Thus, the record reflects the Veteran has been unemployed for the duration of the appeal, and he has the education, occupational history and skill to obtain substantial employment in any unskilled labor or typical office job, in addition to virtually any position in the medical finances field which he previously worked. The Veteran contends he retired early due to multiple medical conditions in addition to his short-term memory loss. See May 2012 VA Form 21-4138. He also stated he moved to New Mexico to be within five miles of family members to assist him with his medical needs. Id. Physically, the Veteran is service connected for a thoracic spine condition and headaches. The severity of his headaches is noted in detail above. For his thoracic spine condition, a January 2014 opinion was provided by Dr. M.M. noting the Veteran's thorac spine condition prevented him from sitting and standing for long periods of time, and he had minimal ability to twist and turn without severe pain. Dr. M.M. concluded the Veteran was unable to perform any level of gainful employment. The Board finds the Veteran's thoracic spine prevents him from maintaining physically demanding employment or even employment where the Veteran must sit for prolonged periods. His headaches prevent him from working in any occupation with a strict work schedule as the Veteran's headaches require a flexible schedule with time off and multiple breaks during the day. Mentally, the Veteran's TBI residuals, discussed in detail above, consist of memory loss, impaired judgment, social interaction, visual spatial orientation, and neurobehavioral effects. His TBI impairs his memory, ability to concentrate, and perform complex financial decisions, such as those he conducted in his prior profession. Pursuant to the Order above, the Board found the Veteran's TBI and headache symptoms remained consistent during the appeal period. Thus, for the same reasons the Board found entitlement to TDIU from December 19, 2013 warranted in the June 2018 Board decision, the Veteran is similarly entitled to TDIU prior to December 19, 2013 as the symptoms have remained the same and the Veteran has been service connected for the same disabilities at the same rating of impairment during the entire appeal period. Hence, resolving all doubt in the Veteran's favor, the criteria for TDIU prior to December 19, 2013 have been met. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, Associate 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.