Citation Nr: 21064915 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-21 344 DATE: October 22, 2021 ORDER Entitlement to a rating in excess of 30 percent for migraine headaches is denied. The discontinuation of a separate 40 percent rating for TBI from April 25, 2013 was proper and entitlement to a separate evaluation is denied. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) with traumatic brain injury (TBI) is denied. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from May 18, 2014. FINDINGS OF FACT 1. The Veteran's headaches do not manifest with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. In an October 2013 rating decision, the RO discontinued a separate 40 percent rating for TBI, and combined the Veteran's TBI with his PTSD rating, effective April 25, 2013. The reduction did not result in a change in combined compensation for the Veteran. 3. The most probative medical evidence verifies that the symptoms of the Veteran's PTSD and TBI are overlapping and that separate ratings for PTSD and TBI would result in impermissible pyramiding. 4. The Veteran's PTSD with TBI is manifested by occupational and social impairment with reduced reliability and productivity but does not result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. 5. Since May 18, 2014 the Veteran has been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. The jobs that he has had since May 18, 2014 are deemed marginal and/or sheltered. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The discontinuance of a separate 40 percent rating for TBI was proper. 38 C.F.R. §§ 3.350, 4.7, 4.124a, 4.130, Diagnostic Codes 8045 and 9411. 3. The criteria for a rating in excess of 50 percent for PTSD with TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045; 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to TDIU have been met since May 18, 2014. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2013 and March 2016 rating decisions by the Department of Veterans Affairs (VA) regional office (RO). The Veteran's claims were remanded by the Board in January 2019. The requested VA examinations have been obtained and the Veteran's claims are now ready for Board review. 1. Entitlement to a rating in excess of 30 percent for migraine headaches. The Veteran submitted his claim for a rating in excess of 30 percent for migraine headaches in December 2015. The March 2016 rating decision on appeal denied the claim and the Veteran appealed. The Board notes that in September 2020 the Veteran's attorney asserted that the Veteran was entitled to a higher rating for his headache disability based on a July 2013 VA examination report. The Veteran's current claim for an increased rating for his headache disability only dates back to December 2015 and the Board finds that the medical evidence from December 2015 is more relevant for evaluating the Veteran's headache disability. The Veteran's headaches are currently evaluated under Diagnostic Code 8100, which pertains to migraines. The Board notes that as the Veteran's headaches are residuals of TBI and have a distinct diagnosis that is contemplated by DC 8100, it is appropriate to separately evaluate the Veteran's headaches under DC 8100. 38 C.F.R. § 4.124a, DC 8045 (providing that any residual with a distinct diagnosis such as migraine headache is to be evaluated under another diagnostic code); 38 C.F.R. § 4.14. The Board has considered the applicability of rating the Veteran's TBI symptoms or headaches by analogy under other diagnostic codes, and no other diagnostic code is for application in this case. Under Code 8100, migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated as 30 percent. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks that produce severe economic inadaptability. The phrase "characteristic prostrating attacks" was defined as describing migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The distinction between the 10 and 30 percent disability levels is the frequency of the headaches. A 10 percent rating is warranted when the prostrating headaches occur once every 2 months; 30 percent when the prostrating headaches occur once a month. The 50 percent rating does not specify the frequency of prostrating headaches, but the phrase "very frequent" connotes a frequency greater than once a month. Johnson, 30 Vet. App. at 253. Thus, to assign a 50 percent rating, the headaches would have to be very frequent and produce severe economic inadaptability. Diagnostic Code 8100. A January 2016 disability benefits Questionnaire (DBQ) notes that the Veteran reported that he had characteristic prostrating attacks of migraine headaches about once every month. He reported right sided head pain that lasted for one to two days. The examiner noted that the headache condition significantly decreased the Veteran's function during migraine flares. The Veteran was examined again in December 2019. The December 2019 DBQ notes that the Veteran reported that his headaches were the same since his last examination. He reported that he had a headache once per month. On the days he had a headache he would wake up with the headache and it would last from four to six hours. He reported that he had light and sound sensitivity during the flare ups. The examiner noted that the functional impact of the headaches were difficulty with attention and concentration. The Veteran reported the frequency of his prostrating headaches as averaging once a month at both the January 2016 and December 2019 examinations. A January 2017 VA treatment record noted that the Veteran reported that his headaches were occasional and manageable. In February 2017 he reported that he had migraine type headaches two to three times a month, at times he got nauseated and that he retreated to a dark quiet room until it passed. In March 2017 he reported three severe headaches a month and that he took a break for 10-15 minutes when he had a headache. The Board recognizes that the March 2017 VA treatment record notes that the Veteran reported up to three severe headaches a month. However, when the Veteran reported up to three severe headaches a month, he indicated that he would take a break of 10 to 15 minutes, which is indicative that they did not cause severe economic inadaptability. Furthermore, the other medical evidence indicating that the Veteran's severe headaches were about once a month, and that the headaches were occasional and manageable, all indicate that the Veteran's headache disability did not produce severe economic inadaptability. Viewed as a whole, the Board finds that the record does not support a finding that the service-connected headache disability is manifested by very frequent completely prostrating and prolonged attacks that produce severe economic activity. Accordingly, the criteria for a rating in excess of 30 percent for migraine headaches has not been met at any time during the appeal period and an increased rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to restoration of a separate 40 percent rating for TBI from April 25, 2013. The October 2013 rating decision on appeal discontinued the Veteran's separate 40 percent rating for TBI. The rating decision combined the Veteran's TBI and PTSD ratings and granted an increased rating of 50 percent for PTSD with TBI. This discontinuance occurred because the symptoms of these two disabilities are overlapping and cannot be separately distinguished. To have continued a separate rating for TBI based on symptoms that are considered in assigning the PTSD rating would be contrary to the Rule Against Pyramiding. The rule against pyramiding is addressed in 38 C.F.R. § 4.14, which notes that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. VA regulations provide that where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Here, the discontinuation of the 40 percent rating for traumatic brain injury did not result in the reduction of compensation payments. Due to the concurrent increase in the PTSD with TBI rating from 30 percent to 50 percent, the Veteran's combined service-connected rating remained at 90 percent. As the discontinuation did not result in a reduction of his overall combined rating or a reduction in compensation payments being made, notice was not required. A reduction of a rating generally must be supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); Brown v. Brown, 5 Vet. App. 413 (1993). In a July 2009 rating decision, the RO granted service connection and a 40 percent rating for TBI based on the Veteran having a level of severity of "2" for the facets of memory, attention, concentration, executive functions; social interaction; orientation. The rating decision also granted service connection and a 30 percent rating for PTSD, based on symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, slowness in processing information, anger, irritability, and exhaustion. As noted above the October 2013 rating decision on appeal discontinued the Veteran's separate 40 percent rating for TBI, combined the Veteran's TBI and PTSD ratings, and granted an increased rating of 50 percent for PTSD with TBI. In a February 2018 letter the Veteran's attorney argued that the Veteran should be provided separate ratings for his PTSD and TBI disorders. He stated that the VA TBI examination in October 2013 noted objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, which constitutes a 40 percent rating for TBI. The attorney asserted that the October 2013 VA examiner did not state that the Veteran's impaired memory was due to PTSD. The attorney argued that this is distinguishable from the Veteran's neurobehavioral effects such as irritability, which may be due to the Veteran's PTSD. The attorney referenced a December 2017 private psychological evaluation of the Veteran. The private psychologist opined that there were attributable differences in symptoms which separate the Veteran's PTSD and TBI diagnoses. Specifically, the Veteran's TBI examination noted very low scores for memory and overall impairment in cognition and thought processing of information. He opined that although the Veteran's PTSD was certainly an aggravating factor to his TBI condition, he felt the notable cognition and memory deficits were distinguishable enough to separate diagnostically. The Board has considered the December 2017 private psychological opinion, but finds that the preponderance of the evidence shows that the Veteran's PTSD and TBI symptoms are overlapping and that separate ratings are precluded as such would result in pyramiding. A VA examiner found the Veteran to have normal memory on VA examination in February 2009. The only residuals of TBI found were migraine headaches. A February 2009 VA psychiatric examination report attributed the Veteran's mild memory loss and difficulty understanding complex commands to the Veteran's PTSD. On VA TBI examination in July 2011 the Veteran was noted to have mild short-term memory impairment and occasional difficulty concentrating. The VA examiner stated that he was unable to state which symptoms were due to PTSD and which were due to TBI. On VA PTSD examination in July 2013 the Veteran reported symptoms of depressed mood, anxiety, panic attacks, sleep impairment, memory impairment, disturbances of motivation/mood, and difficulty in establishing/maintaining effective relationships. The VA examiner noted that the Veteran also had a diagnosis of TBI and stated that it was not possible ot differentiate what portion of the Veteran's impairment was caused by TBI. An October 2013 VA TBI examination report indicated that the Veteran had mild memory impairment. The VA examiner did not discuss whether the memory impairment could also be due to PTSD. The Veteran was provided a VA examination in November 2019. His PTSD symptoms included depressed mood, anxiety, suspiciousness, mild memory loss, impairment of short- and long-term memory, flattened affect, difficulty understanding complex commands, disturbances of motivation/mood, difficulty in adapting to stressful circumstances and difficulty in establishing/maintaining effective relationships. The examiner noted that it was not possible to differentiate which of the Veteran's symptoms were caused by his PTSD and which by his TBI. She noted that both have overlapping symptoms which could cause impairments at any given time. A December 2019 disability benefits questionnaire notes that the Veteran had residuals of a TBI, including memory loss. The VA examiner opined that it was not possible to accurately differentiate which symptoms are attributable to PTSD versus TBI. He noted that the symptoms may be caused by either condition. The Veteran had six VA PTSD and/or TBI examinations between February 2009 and December 2019 in which the VA examiners indicated that the Veteran's PTSD and TBI symptoms were overlapping and could not be separated. The November and December 2019 VA examiner reviewed the Veteran's medical records, including the December 2017 private psychological opinion, and still came to the conclusion that the Veteran's PTSD and TBI symptoms were overlapping and could not be individually separated. These VA medical opinions outweigh the one private medical opinion and the October 2013 VA examination report that did not provide an opinion. The greater weight of the evidence, over the entire appeal period indicates that the Veteran does not have nonoverlapping symptoms that would allow separate ratings for PTSD and TBI without resulting in pyramiding. Accordingly, a separate disability rating for the Veteran's TBI is not warranted as the primary symptom (memory loss) exhibited cannot be separated from his symptoms of PTSD and rating based on the PTSD criteria results in a higher rating (see below). See 38 C.F.R. § 4.124a, Diagnostic Code 8045, 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. Entitlement to a rating in excess of 50 percent for PTSD with TBI. The Veteran's claim for an increased rating for PTSD was received in April 2013. The October 2013 rating decision on appeal granted the Veteran an increased rating of 50 percent for PTSD with TBI, effective from April 25, 2013. The Veteran seeks a rating in excess of 50 percent. In a June 2020 letter the Veteran's spouse reported that the Veteran is groggy and has poor concentration when he does not use his CPAP machine when he sleeps. She stated that the Veteran did not have friends. She reported that he will go into the public, but that made him anxious. She said that he does not like large crowds, does not go to big events, and mostly stays home. She reported that when he does interact with others he tends to read too much into simple comments and gets upset. She said that the Veteran had mood swings and that his emotions were extreme. She reported that he gets anxious and has occasional panic attacks. According to VA's General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned 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; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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. 38 C.F.R. § 4.130. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). On VA examination in July 2013 the Veteran reported that he was an assistant supervisor at his job at a VA outpatient clinic. He reported symptoms of depressed mood, anxiety, panic attacks, sleep impairment, memory impairment, disturbances of motivation/mood, and difficulty in establishing/maintaining effective relationships. The VA examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Board notes that this matches the criteria for a 10 percent rating for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. VA treatment records dated in August 2013 reveal the Veteran reported having been prescribed citalopram while in the military with good result. He said that he stopped taking it when he ran out after discharge from the military. He stated that since being off the citalopram he had worsening of anxiety and sleep problems. He reported that he did well when busy and at work, but said that anxiety, intrusive thoughts, worries, racing thoughts, and feeling jittery were all bothersome in the evenings when he was at home. The examiner noted that the Veteran was friendly and cooperative, and he maintained good eye contact. His affect was euthymic, full in range and mood congruent. He was calm and he said that his mood was all right. There was no gross impairment of memory noted and no suicidal or homicidal ideation. The Veteran was prescribed citalopram. In April 2014 the Veteran reported that his citalopram was very effective and that he did not feel depressed. In January 2015 it was noted that the Veteran's PTSD/depression/insomnia were doing well on citalopram. The Veteran was neat, clean, friendly, pleasant, and cooperative. On October 6, 2016 the Veteran was admitted to a VA medical center for depressed mood and suicidal ideation. The Veteran was discharged the next day in stable condition. At discharge he denied any suicidal or homicidal ideation. His mood was euthymic and his affect was mood congruent. On October 11, 2016 the Veteran reported that his PTSD symptoms were well-controlled. He said that he was moving to El Paso where he had friends. The Veteran declined needing inpatient treatment for PTSD. He denied suicidal/homicidal ideation. In January 2017 the Veteran had good hygiene, good eye-contact and was cooperative. His mood was euthymic. His thought process was goal-directed and logical. He exhibited no distress. The Veteran had friends, hobbies and he exercised. In February 2017 the Veteran reported always feeling depressed, bur stated that it was manageable. He reported a sense of hopelessness. He denied feeling worthless and he said that he had motivation. He said that he avoided gatherings and that he took medication to help his sleep difficulty. He reported being anxious, irritable, and overly vigilant. Examination revealed the Veteran to be alert, oriented and cooperative. He was appropriately dressed; eye contact was fair and his speech was normal. The Veteran described his mood as okay. His affect was reactive and mildly irritable, though able to compose. Thought process was organized and goal directed. There were no delusions, hallucinations, suicidal ideas, or homicidal ideas. Judgment and insight were fair. The assessment was PTSD and moderate major depressive disorder. The Veteran submitted a December 2017 disability benefits questionnaire (DBQ) filled out by a private psychologist. The VA examiner opined that the Veteran's PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas. The private psychologist noted that the Veteran was working fulltime. The psychologist reported that the Veteran had unprovoked irritability with verbal aggression. He stated that the Veteran experienced panic attacks once a month, increased in social, public, and work settings. He further stated that the Veteran had impaired judgment as it related to his anger, conflicts with others and poor money management. The private psychologist noted that the Veteran had suicidal and homicidal ideations once or twice a month. He reported that the Veteran had persistent delusions with feeling paranoid about people being out to harm him or his family. He said that he sometimes felt that people were watching him, talking about him, or following him. The private psychologist stated that the Veteran did not leave the house except for doctor's appointments and absolute necessities and that he reported reeling uncomfortable going anywhere by himself. The private psychologist referenced several medical articles regarding PTSD being associated with a broad spectrum of functional impairments that include a diminished mental and emotional well-being. VA treatment records note that the Veteran' denied suicidal thoughts/ideations in January 2017, August 2018, September 2018, February 2019, August 2019, September 2019 and November 2019. In August 2018 the Veteran sought VA inpatient treatment for possible bipolar disorder. He indicated that he had had no sleep in the past two days and was feeling paranoid. He reported periods of elevated mood followed by depression. He said that during those episodes he was more likely to have suicidal ideation. The Veteran reported that he had one suicidal attempt when he was a teenager. He said that he currently had suicidal ideation without specific plan or intent. While an inpatient he denied suicidal ideation. He reported having neighbors that the talked to. The Veteran was diagnosed with bipolar disorder and prescribed lithium. Later in September 2018 the Veteran was seen for followup. He was neatly and appropriately dressed and adequately groomed. He was calm, cooperative, and engaging. He was euthymic and his thought process was linear, coherent, logical, and goal-oriented. His judgment and insight were good. The assessment was bipolar disorder and PTSD. In November 2018 it appeared that the Veteran was managing well with lithium. He reported continued mood stability, better sleep, and lack of suicidal thoughts. The Veteran reported that he had recently shifted to the night shift at work and that he was still adjusting. He denied any exacerbating depressive, anxiety, or PTSD symptoms. In February 2019 the Veteran reported that he was very busy with work, that he was working extra hours to help support his family. His grooming and hygiene were adequate. He was calm and cooperative; his mood was tired. His affect was mildly dysphoric. His memory was intact. His insight and judgment were fair. In August 2019 the Veteran's mood was stable without frank tearfulness or manic activation in recent memory. The Veteran was trying to stay active, engage with family and attend the gym, without notable anhedonia/amotivation or social isolation. The Veteran's mood was fair and his affect was euthymic. He was cooperative, socially appropriate, with fair eye contact. His thoughts were logical and goal-directed with intact associations. Insight and judgment were fair. In September 2019 the Veteran reported that he avoided crowds of people due to anxiety. He denied generalized anxiety symptoms and denied panic attacks. He reported that his mood had been stable. He denied hallucinations and denied eating disorder symptoms. He complained of low energy and anhedonia with regard to hobbies and family. The Veteran had good hygiene and grooming, and his speech was at regular rate and rhythm. He was calm, cooperative and had good eye contact. He was oriented and his thought process was linear, organized and future/goal oriented. His mood was normal. He denied hallucinations and there was no evidence of delusions or paranoia. Insight and judgment were good and memory was grossly intact. The Veteran was noted to be employed and to have good coping skills. A November 12, 2019 VA treatment record notes that the Veteran reported that he was doing really well. He was noted to have a psychiatric history of PTSD and bipolar disorder. The Veteran reported that he was still boxing and that he would be starting school the next semester. He stated that he was travelling for the holidays and that he had been busy with a new dog and friends. The Veteran reported that he had been sleeping better and that he was getting a new CPAP. The Veteran denied racing thoughts, pressured speech, or risk-taking behaviors. The Veteran's VA treatment records include a January 2020 treatment record which noted that the Veteran was going to school for social work. The Veteran was examined by a VA psychologist in November 2019. She indicated that the Veteran's PTSD with TBI resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he socialized with a few friends from his past, but did not seek out new friendships. He stated that he was scheduled to start college the next semester. He reported that he had worked off and on since the last examination. He worked with special needs children and adults. He was not working at the time of the examination. The Veteran stated that he had had suicidal thoughts in 2015 and again in 2016/2017. He reported that both times he checked into a VA Medical Center and for a few days and then discharged. He had never attempted to harm himself. The Veteran stated that he had chronic aggressive thoughts so he isolates. He said that boxing helped him cope. He reported neglect of personal appearance and hygiene. On examination he was neatly groomed and dressed. He was alert and oriented in all spheres. His thought processes were logical and goal directed. The Veteran's mood appeared irritable and he appeared to struggle to bring down his defenses. He exhibited a normal range of emotional expression that reflected appropriately the issues discussed. His emotional control was adequate. The VA examiner stated that the Veteran would have a higher chance of success at a job where he could work alone, a job that was unstructured that he could do at his own pace and timeline, a job with low expectations, a job that was repetitive where he would not be required to learn new tasks. A January 2020 VA treatment record notes that the Veteran was attending school for social work. The Board finds that the December 2017 DBQ from the private psychologist is of no probative value. The DBQ indicates symptoms of great severity which are totally inconsistent with the other medical records. The VA examination reports and the VA treatment records, both before and after the December 2017 DBQ, do not show that the Veteran has suicidal and homicidal ideations once or twice a month. The VA medical evidence of record also does not indicate that the Veteran only leaves the house for doctor's appointments and absolute necessities. During the appeal period the record indicates that the Veteran has often been either employed or going to school. As addressed above, in order for a Veteran to be eligible for a 70 percent rating, he must have occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9433. The Board recognizes that the Veteran received VA inpatient treatment on two occasions in which he reported suicidal ideation. The second time, in August 2018, he was diagnosed with bipolar disorder and prescribed lithium. The Veteran's subsequent treatment records all note that the Veteran denied suicidal ideation. Even prior to the inpatient treatments the Veteran usually denied suicidal ideation. None of the medical records indicate that the Veteran had obsessional rituals that interfered with routine activities. Additionally, the Veteran's speech has not ever been reported to be illogical or obscure. Although the Veteran reportedly struggled with panic attacks and depression, it did not appear to affect the Veteran's ability to function independently, appropriately, and effectively. The panic attacks and depression were not near continuous. The Veteran was well groomed, and he did not struggle with impaired impulse control or spatial disorientation. The Veteran did not suffer from psychotic symptoms. With respect to social and occupational interactions, the Veteran did not have an inability to establish and maintain effective relationships as a result of his acquired psychiatric disorder. The Board recognizes that he exhibited some difficulty in establishing and maintaining effective work and social relationships. This was reflected by his wife's reports that the Veteran had mood swings and that his emotions were extreme. However, the fact that the Veteran was both going to school and that he was at times employed indicates that despite some difficulty, he did not have an inability to establish and maintain effective relationships. The medical evidence demonstrates that the Veteran's social and occupational functioning is limited by such symptoms as depressed mood, anxiety, panic attacks, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships but those symptoms are specifically listed in the criteria for the rating of 50 percent. The record clearly shows that the Veteran's psychiatric symptoms more nearly meet the criteria for a 50 percent rating that those of a 70 percent rating or of any symptoms that are similar in severity to the criteria for a 70 percent rating. Accordingly, a rating in excess of 50 percent for service-connected PTSD with TBI is not warranted under Diagnostic Code 9411, the criteria for rating PTSD. As noted above, a separate disability rating for the Veteran's TBI is not warranted as the primary symptoms exhibited cannot be separated from his symptoms of PTSD. As explained below the assigned 50 percent rating based on the PTSD criteria results in a higher rating than if the Veteran's PTSD with TBI was provided a rating based on the TBI criteria. See 38 C.F.R. § 38 C.F.R. § 4.124a, Diagnostic Code 8045; 38 C.F.R. § 4.130, Diagnostic Code 9411. Residuals of TBI are evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. TBI residuals are rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Evaluation of Cognitive Impairment and Subjective Symptoms requires consideration of the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," which contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. On VA examination in October 2013 the Veteran was noted to have migraine headaches and mild memory impairment due to TBI. The examiner reported that the Veteran's facet for memory, attention, concentration, and executive functions was 1 (mild impairment). Subjective symptoms were 1 (three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living or work, family, or other close relationships; examples are intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). Neurobehavioral effects were 2 (One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them). The remaining facets of orientation, judgment, social interaction, visual spatial orientation, motor activity, communication, and consciousness were 0. VA examination for TBI in November 2019 revealed that the Veteran complained of short term memory loss and difficulty with concentration. The examiner reported that the Veteran's facet for memory, attention, concentration, and executive functions was 1 (mild impairment). Visual spatial orientation was 1 (mildly impaired). Subjective symptoms were 1 (three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living or work, family, or other close relationships; examples are intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). Neurobehavioral effects were 1 (one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction). The remaining facets of orientation, judgment, social interaction, motor activity, communication, and consciousness were 0. As noted above his reported physical symptoms of headaches are already rated separately as migraine headaches (30 percent) under Diagnostic Code 8100. The competent and probative findings on clinical examination of TBI since the Veteran's April 2013 claim for increase show that the Veteran has not manifested with an impairment higher than moderate (level 2 impairment) on any of the relevant facets. Consequently, if his PTSD with TBI were rated based on the TBI criteria, he would be at most be entitled to a 40 percent rating. Accordingly, he is not entitled to a rating in excess of 50 percent for his PTSD with TBI under the TBI criteria, 38 C.F.R. § 4.124a, Diagnostic Code 8045. Accordingly, the preponderance of the evidence shows that the Veteran's psychiatric and TBI symptoms have not met the criteria for a rating in excess of 50 percent under any applicable diagnostic criteria at any time during the appeal period. An increased rating in excess of 50 percent for PTSD with TBI is denied. 4. Entitlement to TDIU. The January 2019 Board decision noted that a claim for TDIU is inherent in any claim for an increased rating and pointed out that a December 2017 private psychological evaluation report indicated that the Veteran may have been prevented from working due ot his service-connected disabilities. The Board notes that the Veteran did not appeal a May 17, 2014 rating decisions that denied TDIU. Accordingly, the May 17, 2014 rating decision is final and the Board can only consider whether the Veteran is entitled to TDIU from May 18, 2014 onward. TDIU will be granted when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Since April 25, 2013, the Veteran has been service connected for PTSD with TBI rated at 50 percent, sleep apnea rated at 50 percent, migraine headaches rated at 30 percent, thoracolumbar disc syndrome rated at 10 percent, right knee pain syndrome rated at 10 percent, tinnitus rated at 10 percent, Grave's disease rated at 10 percent and right lower extremity radiculopathy rated at 10 percent. During this period, he has also had service connection and noncompensable ratings in effect for left knee pain syndrome, bilateral hearing loss, sinusitis, right knee scars and left knee scar. The Veteran's combined evaluation has been 90 percent during the entire period since April 18, 2014. Thus, the only remaining question is whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. On an August 2019 VA Form 21-8940, the Veteran reported that since 2012 he had had several jobs. He worked at a VA clinic, at a call center, as a cook, as a kitchen supervisor, and at a group home. He reported that he stopped working in May 2017 due to service-connected issues. He indicated that he had completed two years of college and that he had no other education or training. Finding all doubt in favor of the Veteran, the Board finds that the evidence establishes that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from May 18, 2014. The Veteran submitted a December 2017 letter from a private psychologist. The psychologist opined that the Veteran's chronic and debilitating mental health condition is most certainly severe enough to drastically interfere and functionally impair his current full-time employment activity since his claim in April 2013, uninterrupted through present. The Veteran submitted an April 2019 letter from his supervisor at the group home where he worked prior to May 2019. The supervisor noted that they made good faith efforts to accommodate the Veteran's needs due to his assigned percentages (service-connected disabilities) and allowed the Veteran to take breaks or call in as necessary. The supervisor further noted that there was always a second staff member on the Veteran's shifts to assist the Veteran with the more strenuous direct care tasks. This letter tends to indicate that the Veteran's employment at the group home was a sheltered environment. The Board has considered the Social Security Administration earnings record. The record shows that each year from 2014 to 2018 the Veteran's taxed earnings were below the U.S. Census Bureau's average poverty threshold for one person. Under 38 C.F.R. § 4.16(a) this evidence is deemed to indicate that the Veteran's employment was marginal, and marginal employment is not be considered substantially gainful employment. The Board recognizes that some of the VA medical evidence does not indicate that the Veteran's service-connected disabilities rendered him totally unemployable. The Board also recognizes that the Board did not find the December 2017 opinion of the private psychologist to be probative for assigning a rating in excess of 50 percent for PTSD with TBI. However, when considering the variety of the Veteran's jobs, the brevity of his employment in each job, considering that his service-connected disabilities are both mental and physical, considering the April 2019 employer statement and the Veteran's SSA earnings record, the Board finds that the evidence is at least in equipoise that the Veteran's has been unemployable, as determined by VA regulations, due to his service-connected disabilities since May 18, 2014. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.