Citation Nr: 21067182 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-32 575 DATE: November 3, 2021 ORDER Prior to September 6, 2013, a compensable evaluation for headaches associated with traumatic brain injury is denied. From September 6, 2013, to February 18, 2021, an evaluation in excess of 30 percent for headaches associated with traumatic brain injury is denied. Beginning February 19, 2021, an evaluation in excess of 50 percent for headaches associated with traumatic brain injury is denied. Beginning September 6, 2013, a 50 percent evaluation for posttraumatic stress disorder is granted. Beginning November 8, 2019, an evaluation in excess of 70 percent for posttraumatic stress disorder is denied. REMANDED Service connection for sleep apnea is denied. A compensable evaluation prior to April 15, 2021, for traumatic brain injury residuals, other than headaches, sleep impairment, and emotional/behavioral dysfunction, to include Meniere's syndrome, dizziness, and gait and balance problems. FINDINGS OF FACT 1. Prior to September 6, 2013, headaches associated with traumatic brain injury were not characteristic prostrating attacks. 2. From September 6, 2013, to February 18, 2021, headaches associated with traumatic brain injury were not prolonged attacks productive of severe economic inadaptability. 3. Beginning February 19, 2021, the Veteran has been awarded the highest schedular rating for headaches associated with traumatic brain injury. 4. Beginning September 6, 2013, posttraumatic stress disorder with insomnia was productive of occupational and social impairment with reduced reliability and productivity. 5. Beginning November 8, 2019, posttraumatic stress disorder with insomnia did not manifest as total social impairment. CONCLUSIONS OF LAW 1. Prior to September 6, 2013, the criteria for a compensable evaluation for headaches associated with traumatic brain injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. From September 6, 2013, to February 18, 2021, the criteria for an evaluation in excess of 30 percent for headaches associated with traumatic brain injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. Beginning February 19, 2021, the criteria for an evaluation in excess of 50 percent for headaches associated with traumatic brain injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 4. Beginning September 6, 2013, the criteria for a 50 percent evaluation for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 5. Beginning November 8, 2019, an evaluation in excess of 70 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2006 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and October 2014 ratings decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues of the evaluation of a right knee disability, the evaluation of a low back disability, service connection for major depressive disorder, and entitlement to a total disability rating based on individual unemployability (TDIU) were previously on appeal. In several correspondences, including in May 2021, the Veteran withdrew his appeal as to those issues. Although, a TDIU is not a separate claim, here, the Veteran indicated he does not wish to pursue such entitlement. Therefore, the Board does not address the issue of a TDIU on appeal. Additionally, an April 2016 VA Form 21-0958, Notice of Disagreement (NOD), expressed disagreement with a January 2016 rating decision regarding the evaluation of obstructed voiding with urinary frequency due to multiple sclerosis. The Board notes that there was no January 2016 rating decision and the Veteran has not been diagnosed with multiple sclerosis. Accordingly, the Board takes this as an erroneous submission and does not address the NOD further. In the August 2014, December 2014, September 2020, and September 2021 correspondences, the Veteran's representative writes what appear to be boilerplate contentions regarding VA's failures of due process. The representative does not apply these contentions to the facts of the case nor explain how the referenced failures rise to the level of a denial of procedural due process protections. Therefore, the Board finds they do not raise any issues with the duty to notify or assist. In the September 2021 statement from the Veteran's representative, the issues of earlier effective dates for Traumatic Brain Injury and PTSD are raised. However, as will be discussed below regarding TBI, the Veteran is in receipt of the earliest effective date legally possible, which is the day after the Veteran's separation from service. As to an effective date for PTSD, this appears to be a new claim raised. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 1. Traumatic Brain Injury Evaluation Initially, the Board notes that the Veteran appealed the issue described in the May 2014 rating decision as "A clear and unmistakable error is found in the effective date of residuals of traumatic brain injury diagnosed as post concussive headaches and an evaluation of 0 percent is established from August 24, 2011. The evaluation is then increased to 30 percent effective September 6, 2013." Because the effective date the Veteran has been awarded is the day after the Veteran's separation from service, there is no earlier effective date possible as a matter of law. Accordingly, the issue of effective date is not discussed and the Board addresses only the issue of the evaluation of the traumatic brain injury (TBI) beginning August 24, 2011. The Veteran seeks a higher evaluation for his TBI. TBI is evaluated under Diagnostic Code 8045. Under Diagnostic Code 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 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." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table 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. Id. 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." Id. 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. Id. 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. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" 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. Adjudicators are to assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," adjudicators are to 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. Id. The rating assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury (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. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. The Board addresses those residuals that have a distinct diagnosis. Under the third paragraph of DC 8045, the Board is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache. In this case, the Veteran has distinct diagnoses for headaches and Meniere's syndrome. Meniere's syndrome has the highest possible evaluation beginning April 15, 2021, and whether it is present prior to April 15, 2021, is remanded. Thus, the Board will not discuss it here. In the fourth paragraph under DC 8045, the Board is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder. In this case, the Veteran has a diagnosis of a mental disorder in the form of PTSD. Although PTSD has not been associated with TBI, to evaluate the same symptoms under a different diagnostic code would be improper "pyramiding." Esteban v. Brown, 6 Vet. App. 259, 262 (1994). This includes the Veteran's sleep impairment, described as insomnia. The sleep impairment has specifically been associated with PTSD, and to evaluate it separately would be improper pyramiding. Because DC 8045 specifically requires the Board to use 38 C.F.R. § 4.130 where a mental disorder diagnosis is present, the Board finds a separate evaluation for insomnia is not warranted. As to any residuals that do not have a distinct diagnosis, such as dizziness, and gait and balance problems, they will be evaluated after the remand directed below is returned to the Board. The Board cannot currently evaluate such residuals because the issue is intertwined with whether the Veteran has Meniere's disease prior to April 15, 2021. Consequently, the Board is left with evaluating only whether the Veteran's headaches warrant a higher evaluation at the various stages of the appeal period. It does so now. 2. Prior to September 6, 2013, a compensable evaluation for headaches associated with traumatic brain injury. 3. From September 6, 2013, to February 18, 2021, an evaluation in excess of 30 percent for headaches associated with traumatic brain injury. 4. Beginning February 19, 2021, an evaluation in excess of 50 percent for headaches associated with traumatic brain injury. The headache residuals of the Veteran's TBI have been rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine headaches. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria do not define "severe economic inadaptability;" however, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Secretary has conceded that the term "productive of economic inadaptability" could be read as either "producing" or "capable of producing." Id. at 445. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. "Completely prostrating" means that "...the headaches must render the veteran entirely powerless." Johnson, 30 Vet. App. at 253. The Board also has a responsibility to discuss any relevant provisions contained in the M21-1 Adjudication Procedures Manual as part of its duty to provide adequate reasons or bases. Overton v. Wilkie, 30 Vet. App. 257 (2018). The M21-1 defines "prostrating" as "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." The Board finds this definition is more detailed and instructive. As it applies to this Veteran's case, it is more favorable. Therefore, the Board will apply the M21 definition. The record shows that the Veteran experiences symptoms of his headaches that are not simply head pain. He reported dizziness, light sensitivity, nausea, sensory changes, and blurry vision. Diagnostic Code 8100 rates migraines, which is a broader term than headaches, and contemplates more than only headache pain. "Migraine" is defined as "an often familial symptom complex of periodic attacks of vascular headache, usually temporal and unilateral in onset, commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often photophobia." Dorland's Illustrated Medical Dictionary, 1166 (32nd ed. 2012). The Veteran's non-headache pain symptoms are contemplated by Diagnostic Code 8100. The evidence in this case shows that, in September 2011, the Veteran underwent a comprehensive TBI evaluation at a VA treating facility. At the time, he reported having headaches 2 to 3 times per week, lasting 5 minutes to 2 hours, with a severity up to 7 out of 10. Headache were triggered or aggravated by any frustration, traffic, and sunlight. The Veteran had no aura with the headaches. At the February 2012 VA TBI examination, the Veteran reported headaches occurred on average three to four times a week and will last hours in duration. There was no nausea and vomiting, but there was some photophobia and phonophobia. The light sensitivity could occur on a routine basis, but it was worse during times of headaches. He describes occasional dizziness up to two times a week associated with the headaches that lasts for brief periods of time. He reported that headaches could be painful and distracting but were not incapacitating in nature. The accompanying VA headaches disability benefits questionnaire (DBQ) added that the Veteran did not have characteristic prostrating attacks of migraine headache pain. A February 2013 VA treatment record showed the Veteran experienced a mild headache, every couple of days. It was generally 4 out of 10 in severity, but can hit 7. It was associated with light sensitivity. An April 2014 VA headaches examination showed the Veteran reporting he continues to get 2 to 3 headaches a week. Headaches included nausea. They lasted less than one day. Characteristic prostrating attacks occurred once per month. In a December 2014 appeal brief, the Veteran's representative states that the Veteran experienced two to four migraine headaches a week while not at work that cause him to "curl up in a ball in the dark until they pass." The representative reported that the Veteran had to leave work twice in the past two months as a result of migraines. Otherwise, he gets headaches randomly at work throughout the week. He stated that when headaches do not send him home from work, they affect his work by slowing him down and causing him to forget things. He asserts that he made a mistake on an order that cost the company more than 100,000 units of product. He asserts this shows severe economic inadaptability. In a November 2019 VA headaches examination, the Veteran reported continued pain from headaches, however, he did not report functional impairment. The Veteran reported headache frequency as every other day to daily. The Veteran was reported not to have medical treatment for headaches. He would use over-the-counter medications to treat his headache episodes. Nausea, sensitivity to light, sensory changes, and blurry vision accompany the headaches. Headache pain typically lasted less than one day. The examiner found the Veteran did not have characteristic prostrating attacks. The examiner remarked that true prostrating attacks were not voiced by the Veteran, however, when the headache is at its worse, he does need to sit in a dark room and refrain from physical activity. During this time, he would be able to transfer, ambulate, toilet and eat. Activities of daily living would be able to be accomplished, but instrumental activities of daily living (watch TV, shop, drive) would be avoided. In the November 2019 VA Central Nervous System examination, the Veteran reported he has headaches almost daily. They are sometimes debilitating and he has to leave work early. Later in the examination report, the examiner reported that the Veteran lost 2 to 4 weeks of work time in the last 12 months, and that the Veteran gets headaches at least twice a week. He has to sit in a dark room at workplace for a while, if it does not get better than he goes home. In February 2021, the date of the award of a 50 percent evaluation for migraine headaches, the Veteran underwent a VA headaches examination. He stated he had prostrating headaches of two hours in duration on a daily basis. Period prior to September 6, 2013, the Board concludes that the Veteran's migraines have occurred with less severe attacks than required for a compensable evaluation under DC 8100. A compensable rating under DC 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. Here, the headaches are not considered prostrating. The most probative evidence shows that the Veteran's headaches, while frequent, painful and distracting, were not incapacitating. See February 2012 VA TBI examination. Furthermore, the 2012 VA headaches examiner found these were not characteristic prostrating attacks. In February 2013, the Veteran described the headaches as generally mild, or with a severity of 4 out of 10, although it could hit a 7 out of 10. The Veteran did not describe the headaches, even the severe ones, as causing him extreme exhaustion or powerlessness. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the headache severity is largely only derived from the Veteran's reports. The Board finds the Veteran's reports to VA treating providers and examiners more credible and probative than the Veteran's representative's statements about what the Veteran said. Accordingly, the Board concludes that the Veteran's migraine headaches occurred with less frequent attacks throughout the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100, for the period prior to September 6, 2013. For the period from September 6, 2013, to February 18, 2021, the Board finds that a 50 percent evaluation is not warranted because the Veteran's headaches are not prolonged or productive of severe economic inadaptability. The April 2014 and November 2019 VA examinations show that the headaches lasted less than one day. In the November 2019 VA Central Nervous System examination, the Veteran reported losing approximately 2 to 4 weeks of work in the past 12 months. The Board does not find this to be productive of severe economic inadaptability. Regarding the assertion that the Veteran made a mistake on his job while he had a headache that cost the employer a large order, the Board finds the term "productive of severe economic inadaptability" or "capable of producing severe economic inadaptability" means economic inadaptability for the Veteran, not for his employer. Furthermore, this appeared to be a one-time incident over the appeals period. Because the Veteran's characteristic prostrating attacks are not prolonged and have not been shown to be productive of severe economic inadaptability or capable of producing severe economic inadaptability, a higher evaluation is not warranted. Beginning February 19, 2021, the Veteran has been awarded the highest schedular evaluation for headaches. No higher evaluation is warranted. 5. Prior to November 8, 2019, an evaluation in excess of 30 percent for posttraumatic stress disorder. The Veteran asserts that his service-connected PTSD is worse than a 30 percent evaluation. He notes he has a significant sleep disorder, insomnia, and wants a separate evaluation for it. The Veteran's PTSD is evaluated under Diagnostic Code 9411, which is evaluated under the General Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this stage of the appeal (i.e. prior to November 8, 2019) is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran's symptoms caused the level of impairment required for a disability rating of 50 percent, but not higher. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. On this record, at the February 2012 VA mental disorders examination addressing TBI neuropsychological testing, the Veteran appeared tired with psychomotor slowing. He presented with restricted affect and apparent depressive affect. He gave up easily on a host of testing items consistent with low frustration tolerance that often times is associated with PTSD and or a depressive or mood disorder. Neuropsychological testing on the date of the examination showed essentially average results except for one area. The Processing Speed Index Score was in the borderline range. The examiner opined that this was due to fatigue, low level of energy, and likely PTSD symptomatology. The examiner noted apathy toward the testing, which artificially deflated the Language score to some degree. A February 2012 VA examination mental disorders examination addressing PTSD (rather than the TBI neuropsychological effects), showed the Veteran was open and cooperative, pleasant and gave normal responses to questions. He was able to smile at times. He was oriented in all spheres. His attention and concentration were intact. He describes his mood as "calm, every now and then angry, kind of empty." The Veteran's insight and judgment were intact. The Veteran says that he has been on prescription for Ambien and ran out a couple of weeks ago, and without that he doesn't sleep very well. He awakens during the night. The Veteran was unable to interpret a proverb. His memory for remote, recent, and immediate events were intact, including when asked what he did on the previous day stating that he did laundry. Symptoms for rating purposes were depressed mood, anxiety, and chronic sleep impairment. The Veteran reported that his younger brother lives there with him. Veteran does housework such as laundry, cleaning, cooking, etc. The Veteran does have contact with his extended family. The Veteran reported that he does get together "every now and then, not on a regular basis" with other people to do things like go out four wheeling, sometimes to go to a bar, but he does not like to drink too much, and other times goes out in the country to do target practice. He was employed at that time. A January 2013 VA treatment note shows the Veteran experiencing "road rage" at times, that had improved. He was working full time and running errands for his father. His sleep was improved. He was walking some for exercise. He was enjoying spending time with his friends and family. He continued to avoid stores when they are overly crowded but felt he was managing well. He took a vacation to see his girlfriend. Behavioral observations showed the Veteran's mood was cheerful and affect was appropriate. Speech was relevant and spontaneous. Thought processes were logical and goal-directed. Homicidal ideation was absent. At a February 2013 VA TBI treatment evaluation the Veteran reported the following symptoms: moderately decreased attention and concentration; mild forgetfulness/decreased memory; mild difficulty in decision making; severe slowed thinking speed, or difficulty with organization, initiation and follow-through; severe fatigue and loss of energy; severe sleep disturbance; moderate anxiety; moderate depression; severe anger/irritability/feeling easily annoyed; and severe frustration intolerance. He further reported being moderately bothered by repeated, disturbing memories of stressful experiences and quite a bit bothered by repeated, disturbing dreams of stressful experiences. He reported moderately reliving the experiences and reactions to reminders of military experience and a strong avoidance of military experience. He reported quite a bit loss of interest in things he used to enjoy, feeling quite distant or cut off from other people, feeling quite emotionally numb, and having trouble falling or staying asleep quite a bit. He reported being moderately impacted by feeling irritable or having angry outbursts, and moderately having difficulty concentrating and feeling jumpy or easily startled. In April 2013 VA psychiatric treatment, the Veteran reported that his depression was fairly well controlled, and that an average depression day for him is a 3 on a 1 to 10 severity scale. He reported continuing to have road rage and that little things can "set him off" sporadically. He reported working as a car salesman. His sleep pattern was good. He reported nightmares one to two times weekly, but he usually did not awaken from them. His mood was cheerful, and his affect was appropriate/variable. A suicide risk assessment was negative. He filed his claim for an increased rating on September 6, 2013. In October 2013, the Veteran provided a list of mental health symptoms that apply to him. They were: anger, anxiety, chronic sleep problems, danger of hurting self or others, depression, emotional numbing, flashbacks, guilt, intrusive thoughts, isolation, lack of emotions, memory loss, neglects family, nervousness, panic attacks, period of violence, problems with communication, problems getting along with people, suspiciousness, takes medications for mental conditions, and unable to share feelings. An April 2014 VA PTSD examination was conducted. The examiner found there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported being married for a year and having an 18-month-old child. The Veteran reported that he has contact with his mother, father, and older brother. The Veteran reported that if he goes to others houses, he is usually alright, but if people come over to their house, he has trouble. He says that any social get together that is out in public is uncomfortable for him. He reported having a job end because of "altercations with some of the co-workers." He notes that he had only worked there "a couple of weeks, maybe a month." He reported that before that, during the last two years, he had worked at an auto dealership, a grocery store, and tried a warehouse job that he could not do because it bothered his back too much. Behavioral observations showed the Veteran's attention and concentration were intact. He described his mood as "anxious, on guard, restless, sometimes empty, just emotionless." His insight and judgment were intact. The Veteran stated that he takes Ambien to get to sleep, but awakens after three or four hours, noting that he doesn't know what awakens him. He was unable to interpret a proverb. His memory for remote, recent, and immediate events were intact, including when asked what he did on the previous day stating that he watered the lawn. His traumatic stressors affected him in public places. He has to go shopping in the middle of the night. He is definitely angry, getting in fights with co-workers, sometimes customers, and his patience is rather short. As for his sleep, it has to be absolutely quiet. A December 2014 appeal brief from the Veteran's representative asserts that the Veteran's condition has worsened. The representative reports that the Veteran has a flattened affect, has difficulty speaking to others, repeats himself, has difficulty staying on topic, jumps from one subject to another. The representative stated that the Veteran has panic attacks two to three times a week, that it is difficult for him to follow complex instructions, and that he has impairment of short- and long-term memory. He has struggled to some extent with impaired judgment and abstract thinking. He has disturbances of motivation and mood all the time and has extreme difficulty establishing and maintaining effective work and social relationships. December 2016 VA mental health treatment records showed the Veteran ran out of his medication and reestablished care with VA. He stated he was "just fine with his medication." He was tired because he was out of his sleep medication. The records report the Veteran convincingly denied current suicidal ideation, homicidal ideation, and auditory and visual hallucinations. In the clinical judgment of the therapist, the Veteran was not at risk of harm to self or others. In July 2017 VA treatment records, the Veteran reported being unable to sleep well due to TBI and nightmares. He described sleep as 'horrible'. He has difficulty sleeping and after a few days of that, he falls asleep for 16 hours. August 2017 VA treatment showed the Veteran felt his main problem was the inability to sleep. He denied being depressed, sad or hopeless. His affect was appropriate to the content of speech. He denies any suicidal or homicidal ideation intent or thought. He denied any auditory or visual hallucinations. There was no evidence of any racing thoughts or flight of ideas. The mental status examination showed he was oriented, cooperative, and reasonable. His speech was normal in rate and rhythm. His language was intact. His mood was euthymic. His thought process and association were normal and coherent. He had no unusual thought content. In a November 2018 VA treatment note, he reported poor sleep, depression on a 4 out of 10 scale, moderate anxiety, and irritability. Work was "not too bad." There was no suicidality and homicidal ideation. He was diagnosed with primary insomnia. In March 2019, a VA mental health note showed sleep impairment. Mood was 'okay' and 'stable'. Depression was a 3 out of 10, improved with increase in sertraline. Anxiety was mild to moderate, occurring daily, and worse when out of the house. The Veteran's facial expression was normal and responsive. Grooming and hygiene were fair. The patient's motor behavior was normal. Mood was euthymic. Affect was appropriate/variable. Speech was relevant and spontaneous. Thought processes were logical and goal-directed. Thought content was relevant and optimistic. Insight was good. The Veteran was not suicidal and was found not to be at risk for suicide, based on a Suicide Risk Assessment. The examiner found no homicidal ideation. Based on the evidence, the Board finds that an evaluation of 50 percent is warranted beginning September 6, 2013. The most probative factor in this finding is the Veteran's difficulty in establishing and maintaining effective work and social relationships, his road rage, fighting with his co-workers, and his avoidance of public places to the point where he shops late at night. The Veteran's chronic sleep impairment is already contemplated by the 30 percent evaluation, so it is not a factor in this increased rating. A higher 70 percent or 100 percent evaluation is not warranted because the Veteran's symptoms do not more nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or total occupational and social impairment. In that regard, the evidence shows the has not had suicidal ideation. Although he reported being in danger of hurting himself or others on the October 2013 list of mental health symptoms that he submitted, the overwhelming majority of the more probative evidence shows that he denied suicidal ideation and was not at risk for suicide. To the extent the Veteran meant the risk of hurting others, the overwhelming majority of the VA treatment and VA examination records contradict this, as homicidal ideation was not present and the Veteran did not report such concerns. The altercations in which the Veteran engaged do not show enough frequency or severity to rise to the level of impairment in impulse control with periods of violence. The altercations appear to be verbal, not physical. The treatment and examination records show speech and thought processes were relevant, spontaneous, logical goal-directed, and regular in rate and rhythm. As for the symptom of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, the Veteran was able to work for periods. On frequent treatment visits, the Veteran rated his depression and anxiety as mild or moderate. He demonstrated his ability, despite suspiciousness and anxiety for public places, to be able to shop later at night. This contradicts a finding that he was unable to function independently. It also contradicts the Veteran's and his representative's reports of panic attacks. As for difficulty in adapting to stressful circumstances (including work or a worklike setting), this did not appear to be a factor on reviewing the evidence. The Veteran was able to work. What shortened his employment was altercations with co-workers and physical limitations. As far as inability to establish and maintain effective relationships, while his work relationships were difficult to establish and maintain, his non-work relationships, such as with family and friends were maintained. He established a marital relationship and remained married, having two children and caring for his wife's child. He maintained relationships with his father and brother. He appeared to have friends. Thus, it cannot be said that he did not have the ability to maintain effective relationships. Moreover, even if arguably the Board found he was unable to establish and maintain effective relationships, the Veteran's occupational and social functioning overall does not more nearly approximate that required for the 70 percent evaluation. The Veteran has so few symptoms that are contemplated by the 70 percent evaluation or symptoms similar in severity frequency and duration to those symptoms, and the overall disability picture shows the Veteran functioning fairly well on a holistic basis, but for his sleep impairment and avoidance of people. Finally, the evidence contradicts symptoms similar to obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; spatial disorientation; neglect of personal appearance and hygiene. In making this determination, the Board gives greater weight to the VA treatment and VA examination records, which show the Veteran's symptoms on many occasions, than it does to the one-time report of October 2013 provided by the Veteran, and the Veteran's attorney's summation of symptoms. In short, a 50 percent evaluation is warranted, but the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating during this portion of the appeal period. The Veteran filed his claim for an increased rating on September 6, 2013. The record does not show that his disability became worse within the one year prior to his claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). In fact, some of the evidence from the year prior to his claim showed stability or improvement rather than a worsening of symptoms. For example, the January 2013 treatment record noted an improvement in sleep and a decrease in road rage, and that he was spending more time with his family. In April 2013, he reported that his depression was well controlled and that his sleep pattern was good. Because his disability did not increase in severity during the year prior to his claim, the 50 percent rating is effective September 6, 2013. 6. Beginning November 8, 2019, an evaluation in excess of 70 percent for posttraumatic stress disorder. Beginning November 8, 2019, the Veteran's PTSD is evaluated as 70 percent disabling. As discussed above, a 100 percent evaluation requires both total occupational and total social impairment. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. On this record, the November 2019 VA examination report noted the Veteran's wife's concerns regarding the Veteran's hypervigilance, irritability, insomnia, and depression. She noted he carries a gun with him most of the time for protection. She described him as being very socially isolated, spending most of his time on his phone. The examiner found there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran married in 2014 and he and his wife have two daughters together with one daughter from his wife's previous relationship. The Veteran said he has slowly become more distant from his immediate family. He said he does not have a social life, saying, "I don't like being out in public." He goes shopping at night to avoid crowds. Since 2014, the Veteran estimated going through two or three jobs a year. He described not getting along with people. At times, he feels he can not physically handle the jobs. He has left jobs after having arguments with coworkers. He has had two physical fights at work since 2014. His jobs have generally involved warehouse work. He said he does not have any tolerance for working with customers. He denied any suicide attempts. He verbally denied any thoughts, plan, or intent to harm himself currently. Current mental health symptoms include anxiety, depression, and "drastic mood swings." He reported that when he is upset he screams and throws things around. He will occasionally take risks such as racing his car with friends. Since he was no longer able to take Ambien for sleep the prior year, he resumed using alcohol to help himself get to sleep. He described having a traveler bottle of whiskey most nights until he passes out. Symptoms for VA purposes were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner further remarked in a statement on individual unemployability, that the Veteran is very suspicious and hypervigilant. He does not particularly like spending time with others and will only associate with coworkers who tend not to talk. He is irritable and has trouble not voicing his opinion when he thinks someone is behaving stupidly. In a December 2020 statement, the Veteran's wife reported the Veteran's loss of interest. She stated he would rather be on the phone than have conversation with wife or other members of the family. She noted his sleeping difficulty and angry outbursts in which he threw something into the when she asked him if he was going to help clean up one of his children's messes. She reported he does not help enough around the house. February 2021 VA PTSD examination showed married to his wife since 2013. They have three daughters. Quality of marriage is "[i]t's there". He said the stress of him not having a job and his anger issues limits their closeness. The Veteran said he is easily angered about anything that doesn't go his way. When angry, he yells, slams doors, and throws things out of his way. Anger episodes usually last a few minutes. He calms down by going outside for a cigarette or going to the basement and tinkering around with tools. He has not worked since April 2019 when he worked at Wal-Mart for about one month as a sales associate. He was fired because he got into a physical fight with a male employee. Since 2014, the Veteran estimated going through two or three jobs a year. He described not getting along with people. At times, he feels he can not physically handle the jobs. He has left jobs after having arguments with coworkers. He has had two physical fights at work since 2014. The Veteran was also grieving the loss of his mother to cancer. Socially, he tends to be withdrawn and isolated. He struggles to trust people. He does not leave the house except for grocery shopping which he would do at 2 a.m. when there were only a few people at the store. He continues to choose a time of day when few people are there and sometimes cuts his trip short because he gets irritated. The Veteran said the aisles are narrower at his local store and he gets irritated having to walk near other people and thus, has abruptly left the store. Current mental health symptoms include depression, anger outbursts, and occasional suicidal ideation. The most recent suicidal ideation was near Christmas 2020. The Veteran calls his brother when feeling severely depressed. On review of the evidence, the Board finds the Veteran is not totally socially impaired. The Veteran is married with three children. Although his marriage is "there," and the social isolation are accounted for in the 70 percent rating which contemplates social deficiencies. The Veteran has also indicated he has friends with whom he races cars, and that he has a brother he calls when depressed. These show social relationships that refute total social impairment. Similarly, his grief over the death of his mother reflects he had a relationship in her that was at least somewhat positive. This, too, indicates total social impairment was not present. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran expressed having occasional suicidal ideation in the February 2021 VA examination. However, he reported calling his brother when he feels severely depressed. This tends to show the Veteran is not in danger of self-harm, let alone persistent danger of self-harm. Additionally, these symptoms do not cause total social impairment. Similarly, the Veteran reported getting into two physical fights with coworkers since 2014. The infrequency of these fights shows he is not in persistent danger of hurting others. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. REASONS FOR REMAND 1. Service connection for sleep apnea is remanded. Unfortunately, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, a remand is also warranted because a January 2020 VA treatment record raises the issue of whether the Tramadol that the Veteran had been prescribed for his service-connected back or knee disability caused or aggravated his sleep apnea. In the January 2020 VA treatment record, the clinician reported that Tramadol is a narcotic and that narcotics can cause sleep apnea, snoring, and fatigue. An August 2021 VA medical opinion addressed whether the Veteran's mechanical low back disability caused the Veteran's sleep apnea. However, the rationale is insufficient, as it does not address the Veteran's use of narcotics. Furthermore, it did not provide an aggravation opinion. Therefore, remand for an adequate medical opinion is warranted. The Board notes that the May 2018 Board remand directed VA to arrange for the Veteran to be examined by a sleep speicalist to determine the nature and likely etiology of any non-psychiatric sleep disorders. The directives required the examiner to opine as to whether any sleep disability was a chronic multisymptom illness of unknown etiology. The Board notes that after this remand was issued, the Veteran was diagnosed with obstructive sleep apnea in January 2020. This diagnosis renders moot the opinion required regarding a chronic multisymptom illness of unknown etiology. 2. A compensable evaluation prior to April 15, 2021, for traumatic brain injury residuals, other than headaches, sleep impairment, and emotional/behavioral dysfunction, to include Meniere's syndrome, dizziness, and gait and balance problems. An April 2021 VA medical opinion found that the Veteran has Meniere's syndrome. It is unclear the basis of this finding. The examiner referenced pages and documents that do not correspond to the claims file in the way the Board views it. The only date provided was listed as "20201." Nonetheless, an opinion is warranted as to whether the Veteran has had Meniere's syndrome beginning prior to April 15, 2021. The Board references the Veteran's reports of dizziness dating back to September 2011. The appeal period for the evaluation of a TBI begins in August 2011. Therefore, a retrospective opinion must be obtained in order to properly evaluate the TBI residuals. The matters are REMANDED for the following action: 1. Obtain an addendum VA opinion addressing the Veteran's diagnosed sleep apnea. The evaluation should opine: a. Whether the Veteran's sleep apnea is at least as likely as not proximately due to the service-connected right knee disability or low back disabilities, including the Tramadol or other medication taken by the Veteran potentially for the service-connected disabilities. b. Whether the Veteran's sleep apnea is at least as likely aggravated (increased in severity beyond its normal progression) by the service-connected right knee disability or low back disabilities, including the Tramadol or other medication taken by the Veteran potentially for the service-connected disabilities. Although an independent review of the claims file is required, the examiner's attention is called to the January 2020 sleep consult note in which the evaluator noted that Tramadol is a narcotic and that narcotics cause sleep apnea. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Obtain a retrospective medical opinion from an ear, nose and throat specialist. If an examination of the Veteran is needed, one should be scheduled. If an ENT specialist is not available, the examination may be conducted by another clinician and the examination report should be electronically reviewed by an ENT specialist. The examiner must opine as to the following: (a.) Whether the Veteran qualified for a diagnosis of Meniere's syndrome prior to April 15, 2021, including as early as August 24, 2011. If so, on what date did the Veteran qualify for such diagnosis. (b.) Whether any such Meniere's syndrome is a residual of the Veteran's TBI. (c.) If the Veteran's symptoms do not qualify as Meniere's syndrome, please explain why. (d.) If the Veteran's symptoms do not qualify as Meniere's syndrome, is there another diagnosis for which the symptoms qualify, other than as individual residuals of TBI? (e.) For symptoms in the diagnostic criteria for Meniere's syndrome that overlap symptoms of other diagnosed disabilities, such as nausea or dizziness with headaches, with which disability is the symptom most likely associated? Although an independent review of the claims file is required, the evaluator's attention is called to the following: Reports of dizziness in the September 2011 VA TBI/Polytrauma note, and subsequent reports, including in February 2013 when the Veteran had a sensation that he was falling out of his chair; and the April 2021 VA Ear Conditions examination showing no vertigo or nystagmus during Dix Hallpike test, but abnormal Romberg test. A discussion of the relevance of any specific testing and whether known causes of specific symptoms have been excluded would be helpful. The evaluator must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the evaluator must state this and provide a rationale for such conclusion. 3. Readjudicate the claims. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.