Citation Nr: 21071324 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-04 376 DATE: November 30, 2021 ORDER An initial 70 percent rating for the Veteran's posttraumatic stress disorder (PTSD) is granted. A rating in excess of 10 percent for bilateral hearing loss prior to September 25, 2018, is denied. A 50 percent rating for bilateral hearing loss, effective September 25, 2018, is granted. REMANDED Entitlement to service connection for residuals of a traumatic head injury to include, but not limited to, headaches and problems with concentration and memory is remanded. Entitlement to a total disability rating based on individual unemployability prior to March 20, 2018, is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. There is no evidence of total social and occupational impairment. 2. For the period prior to September 25, 2018, the Veteran's hearing impairment has been no worse than Level I in the right ear and Level XI in the left ear. 3. For the period from September 25, 2018, the Veteran's hearing impairment has been no worse than Level VI in the right ear and Level XI in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, for the Veteran's PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.16, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 10 percent prior to September 25, 2018, for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.10, 4.85, 4,86, Diagnostic Code 6100. 3. The criteria for a 50 percent rating for bilateral hearing loss, effective September 25, 2018, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.10, 4.85, 4,86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing has been associated with the record. When this matter was before the Board in December 2017, in pertinent part, the Veteran's claim for an initial rating in excess of 30 percent for PTSD was remanded for further development. The Veteran was granted an increased 70 percent rating in a March 2019 rating decision, effective March 20, 2018. As less than the maximum available benefit for a schedular rating was awarded and to the extent that the increase was not awarded for the entirety of the claims period, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior March 20, 2018, and in excess of 70 percent for the period following In an April 2012 rating decision, the Veteran was awarded service connection for PTSD, evaluated as 30 percent disabling, effective January 25, 2010. He filed a Notice of Disagreement in February 2011, contending that his symptoms were more consistent with a 70 percent rating. During the pendency of the appeal, a March 2019 rating decision increased the Veteran's PTSD from 30 percent disabling to 70 percent, effective March 20, 2018 (date private examination showed worsening of the condition). The Veteran contends that a higher initial rating is warranted for his service-connected PTSD. The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this criteria, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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 and long-term memory (e.g., the retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood, due to symptoms such 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 work-like setting); or an inability to establish and maintain effective relationships. Finally, a maximum of 100 percent rating is warranted for total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly in appropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). When determining the appropriate disability evaluation to assign, the Board must make findings as to how the Veteran's symptoms impact his or her occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). All ratings in the general rating formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, at the time of an August 2010 VA examination the Veteran reported episodes of sadness, depression, chronic anxiety, nervousness, agitation, and anger problems. He also reported difficulty getting along with others, being fired from his job for a verbal confrontation with a colleague, and memory problems. The Veteran reported that his depression is manifested by episodes of sad mood, lack of interest in activities, decreased attention and concentration, occasional crying spells, guilty feelings about friends who lost their lives in Vietnam, and occasional hopelessness. He reported vague suicidal thoughts, but denied active suicidal or homicidal ideation. He was noted to be married for 10 years and working as a manager for a trucking company for 6 years, with a history of interpersonal conflicts, verbal arguments and physically aggressive behavior at work. On clinical examination, the Veteran was appropriately dressed and groomed, his speech and mood were normal, affect restricted, recent past memory grossly intact, insight was limited, and judgment was adequate for basic needs. There was no evidence of homicidal or suicidal ideation, hallucinations, or delusions. His symptoms were noted to be intermittent, mild to moderate, with a duration of 1-2 years. The Veteran was independently and adequately able to take care of his activities of daily living. The examiner indicated that the Veteran's ability to hold meaningful employment is limited due to chronic psychiatric symptoms of anxiety, nervousness, agitation, anger problems, and difficulty with attention and concentration. At the time of a May 2013 VA examination, the Veteran reported being married and living with his wife and stepson. He further reported having a good relationship with his three biological children and two stepchildren. He denied having any friends and being indifferent to social interaction. The Veteran reported that he retired in 2012, and denied problems getting along with coworkers or supervisors. The Veteran further reported chronic sleep impairment and difficulty with concentration. His symptoms were noted to affect social, family, and intrapsychic functioning. While the Veteran was unemployed, the examiner noted that it did not appear at that time that the Veteran's psychiatric symptoms in any way specifically impede him from obtaining and maintaining employment should he choose to. On clinical examination, the Veteran was appropriately dressed and groomed, his speech and thought process were normal, mood and affect were euthymic, recent past memory grossly intact, insight was limited, and judgment was adequate for basic needs. There was no evidence of homicidal or suicidal ideation, hallucinations, or delusions. The Veteran was oriented to person, place, time, and situation. Deficiencies were noted as to his concentration. The Veteran was noted to have good judgment and insight. For VA rating purposes, the Veteran's symptoms were noted as anxiety, suspiciousness, and chronic sleep impairment. He was capable of managing his financial affairs. The examiner concluded that the Veteran's symptoms were manifested by 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. During the Veteran's May 2017 hearing, he testified that his social life was nonexistent. He reported that he became angry quickly, was suspicious of other people, experienced sleep impairment, had panic attacks, that he had more than a dozen jobs in the past 15 years, and that he had been terminated from jobs for disputes with others. He testified that his two divorces were caused by his PTSD symptoms. The Veteran also reported that he often called off work or left early due to his symptoms. When this matter was before the Board in December 2017, based on the Veteran's testimony of worsening symptoms and given that he had not had a VA examination since May 2013, the matter was remanded to obtain a current examination. The Veteran submitted a medical evaluation from a private psychologist, Dr. B. V., in March 2018. At the time of the evaluation, the Veteran reported severe anxiety and worry, confusion, depression, history of suicidal ideation with a plan, impairments in relationships, inability to make and keep friends, isolation, feeling hopeless and worthless, and an inability to handle stress. For VA rating purposes, the Veteran's symptoms were noted as anxiety, suspiciousness, depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances in 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 suicidal ideation. Dr. B. V. concluded that the Veteran's symptoms were manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was then afforded a VA examination in September 2018. The Veteran reported being married since 2000 and that he and his wife had been separated for 3 years. He reported discomfort with family and strangers, and being anxious and irritable in social settings. He also reported explosive anger, destroying things, hitting walls, and being argumentative. He reported a history of confrontation and disputes with coworkers, resulting in termination from jobs, dating back to 2010. On clinical examination, the Veteran was noted to have a dysphoric and anxious mood and affect. He denied any current homicidal or suicidal ideation, hallucinations, or delusions. The examiner noted a history of experiencing suicidal ideation with increased anxiety, depression, and anger, but denied any intent and plan. For VA rating purposes, the Veteran's symptoms were noted as anxiety, suspiciousness, depressed mood, chronic sleep impairment, panic attacks that occur weekly or less often, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances in 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 suicidal ideation. The examiner concluded that the Veteran's symptoms were manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Based on the findings of the March 2018 evaluation from Dr. B. V. and the September 2018 examination, the Veteran was assigned an increased 70 percent evaluation in a March 2019 rating decision, effective March 20, 2018. The Veteran was again afforded a VA examination in October 2019. He reported living separately from his wife since 2015, being unable to tolerate and be around others, that he lived in a trailer in a remote area, that he was easily angered and confrontational with others, and that he experiences anxiety with unknown people and situations. He reported that he had not worked since 2017, with a history of verbal confrontations with managers and peers at his last job. He reported that his embarrassment turns to anger quickly and contributes to his inability to concentrate or stay on task. For VA rating purposes, the Veteran's symptoms were noted as anxiety, suspiciousness, depressed mood, chronic sleep impairment, panic attacks more than once a week, disturbances in 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, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner concluded that the Veteran's symptoms were manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Finally, the Veteran submitted a private evaluation and medical opinion from Dr. C. M. in May 2020. Dr. C. M. opined that the Veteran's PTSD was chronic and severe and has at least as likely as not caused him occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood since at least 2010 to the present. Dr. C. M. provided a very detailed history of the Veteran's previous occupations and indicated that his last six months of employment, as well as his employment from 2010-2017 were considerably impacted by his symptoms, and only with accommodations was he able to work at all. On clinical examination, the Veteran presented with a constricted affect and dysphoric mood. For VA rating purposes, the Veteran's symptoms were noted as noted as anxiety, suspiciousness, depressed mood, chronic sleep impairment, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively, impairment of short and long term memory, circumstantial, circumlocutory or stereotyped speech, impaired judgment, disturbances in 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, suicidal ideation, obsessional rituals which interfere with routine activities and impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. Dr. C. M. specifically noted her disagreement with the August 2010 examiner's finding that the Veteran had mild to moderate impairment in industrial and social functioning, even though the Veteran was noted to have significant memory problems, extreme isolation, irritability with unprovoked episodes of violence, suicidal thoughts, and a history of job loss. Dr C. M. opined that even at the time of the August 2010 examination, the Veteran's symptoms caused him occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In this case, the Board finds that the Veteran's PTSD symptoms more nearly approximate the criteria for a 70 percent rating for the entire period on appeal. While VA examiners in August 2010 and May 2013 found that the Veteran's PTSD was manifested by, at most, occupational and social impairment due to mild or transient symptoms, these findings are outweighed by the remainder of the evidence of record. Specifically, the most probative evidence of record is the private evaluation submitted by Dr. C. M. in May 2020. This evaluation specifically addresses the duration of the Veteran's symptoms, and concluded that the current level of severity has been present since at least 2010. This finding is supported by the Veteran's occupational history, which consistently shows substantial occupational impairment resulting in his termination from employment dating back to 2010. The evidence of record also shows deficiencies in other areas such as family relations, judgment, thinking and/or mood. Throughout the period on appeal, the evidence indicates that the Veteran had limited to no social interaction with family and friends, and that he has been divorced twice and is currently separated. The Veteran's history of altercations at work and explosive anger also supports a finding of deficiencies in judgment, thinking and/or mood. Additionally, the medical evidence shows a history of suicidal ideation throughout the period on appeal. The Board finds that although the Veteran's PTSD symptoms are serious, they do not rise to the level of the criteria for a 100 percent rating, as the preponderance of the evidence is against a finding of total social impairment due to PTSD. The Board finds the medical evidence of record regarding the overall level of severity of the Veteran's PTSD to be particularly persuasive. Notably, no VA examination or private evaluation has concluded that the Veteran's PTSD symptoms were more disabling than the criteria for the currently assigned 70 percent rating. The next higher, 100 percent rating criteria contemplate total social and occupational impairment, which the Board finds is not shown in this case. The medical evidence of record does not show that the Veteran's PTSD has been manifested by persistent delusions or hallucinations, grossly inappropriate behavior, or a persistent danger of hurting himself or others. Additionally, the objective medical evidence has not shown the Veteran's inability to perform activities of daily living. Further, there is no evidence of disorientation to time or place, or memory loss for names of close relatives, his own occupation, or his own name. As a result, the Board finds that the Veteran's PTSD symptoms, though serious, demonstrate a level of functionality not contemplated by the criteria for a 100 percent rating because they do not indicate that he is totally socially impaired. A review of VA or private treatment records over this period does not reveal any evidence which would support a higher rating. Accordingly, a 100 percent rating for PTSD is not warranted. For the reasons stated above, the Board finds that an initial 70 percent rating is warranted for the Veteran's PTSD. 2. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss The Veteran contends that his service-connected hearing loss is more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the disability rating currently assigned. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIA, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). The Veteran is in receipt of a 10 percent evaluation for bilateral hearing loss. He contends that an initial rating in excess of 10 percent is warranted. At a September 2010 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 45 45 LEFT 105+ 105+ 100 95 90 The puretone threshold average, after rounding to the nearest whole number, was 33 decibels in the right ear and 98 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 96 percent in the right ear and 0 percent in the left ear. There is an exceptional pattern of hearing loss in the left ear. Applying § 4.86(a) and § 4.85, Table VI, Table VIA and Table VII, to the above audiological findings, the Veteran has a numeric designation of XI for his left ear and I for his right ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 10 percent evaluation. This is the case even when the ears are evaluated separately under section 4.86(a). At a May 2013 VA examination, the Veteran reported difficulty with phone conversations, meetings and hearing regular conversations. Pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 50 60 LEFT 105 100 105+ 105 105 The puretone threshold average, after rounding to the nearest whole number, was 44 decibels in the right ear and 104 decibels in the left ear. Speech audiometry using the Maryland CNC word list revealed initial speech recognition ability of 96 percent in the right ear and 0 percent in the left ear. There is an exceptional pattern of hearing loss in the left ear. Applying § 4.86(a) and § 4.85, Table VI, Table VIA, and Table VII, to the above audiological findings, the Veteran has a numeric designation of XI for his left ear and I for his right ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 10 percent evaluation. This is the case even when the ears are evaluated separately under section 4.86(a). At a September 2018 VA examination, the Veteran reported difficulty communicating, an inability to tell which direction sound was coming from, and that phone use was impossible in many cases. Pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 60 75 80 85 LEFT 105+ 105+ 105+ 105+ 105+ The puretone threshold average, after rounding to the nearest whole number, was 75 decibels in the right ear and 105+ decibels in the left ear. It was noted that in the left ear, the Veteran's hearing loss exceeded the capability of the equipment. The audiologist indicated that the "use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate." Additionally, there is an exceptional pattern of hearing loss in the left ear. Applying the above audiological findings, there is a Level VI hearing in the right ear and Level XI in the left ear, under Table VIA, as the use of speech discrimination scores was found to be inappropriate. Application of 38 C.F.R. § 4.85, Table VII, results in a 50 percent evaluation. This results in a more favorable evaluation than when the ears are evaluated separately under section 4.86(a). Based on the foregoing, the Board finds that a 50 percent rating for bilateral hearing loss is warranted as of September 25, 2018. The September 2018 VA examination is the earliest date that the criteria for a 50 percent rating were met. As outlined above, audiological findings for the period prior to September 25, 2018, include the September 2010 and May 2013 VA audiological examinations, which both meet the criteria for a 10 percent rating, but no higher. The Board has considered the Veteran's lay statements, in which he generally contends that his hearing is worse than currently rated, and does not doubt that he experiences a degree of decreased hearing. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. For these reasons, a 50 percent rating, but no higher is warranted as of September 25, 2018. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a traumatic head injury to include, but not limited to, headaches and problems with concentration and memory is remanded. The Veteran contends that he suffers from residuals of a traumatic head injury to include, but not limited to, headaches and problems with concentration and memory. However, the Board finds that the evidence of record raises the possibility that the Veteran's claimed condition may be caused or aggravated by his service-connected PTSD. In a correspondence submitted in November 2011, by Dr. L. J., a private physician, he indicated that in relation to the Veteran's attention, memory, and concentration, the comorbidity of the Veteran's PTSD would need to be considered. The Veteran was also afforded a VA examination in October 2018. The examiner stated that the Veteran's PTSD and mood disorder may be playing a role in his headaches and memory and concentration problems. As a theory of secondary service connection has been reasonably raised by the record, remand is necessary to obtain a medical opinion that addresses whether the Veteran's headaches and problems with concentration and memory are caused or aggravated by his service-connected PTSD. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 20, 2018, is remanded. The Veteran was granted a TDIU, effective March 20, 2018. The Veteran, through his attorney, contends that he has been unable to secure or follow substantially gainful employment since at least 2010. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the evidence shows that the Veteran was employed full-time from April 2011 through May 2017 with BFI Services of Texas, earning $7000 per month. However, in an October 2021 correspondence, the Veteran's attorney seems to suggest that the Veteran was only able to remain employed full-time with accommodations. In this regard, VA regulations provide that marginal employment shall not be considered substantially gainful employment, and that marginal employment may be held to exist, on a facts-found basis, when a veteran is engaged in protected employment. See 38 C.F.R. § 4.16(a). Unfortunately, outside of argument made by the Veteran's attorney that he required accommodations to remain employed on a full-time basis, the evidence of record is not sufficient to determine whether the Veteran's employment with BFI Services of Texas would constitute marginal or protected employment. Accordingly, remand is warranted for the Veteran to submit additional evidence in support of his claim for a TDIU prior to March 20, 2018. Additionally, while requests were made for the Veteran's employment records from BFI Services of Texas in October and September 2019, it does not appear that such records were received. Accordingly, additional requests must be made to obtain the Veteran's employment records. The matters are REMANDED for the following action: 1. Obtain all employment records associated with the Veteran's employment for the period from 2010 through March 20, 2018, including, but not limited to, employment records from BFI Services of Texas. 2. Allow the Veteran an opportunity to submit additional evidence in support of his TDIU claim, with emphasis on any accommodations that would constitute protected employment under 38 C.F.R. § 4.16(a). This may include a statement from his employer that describes the nature of the accommodations made for the Veteran in his work environment. Thereafter, take all appropriate action on the TDIU claim. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his residuals of a traumatic head injury to include, but not limited to, headaches and problems with concentration and memory. Access to the claims file must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinion: a.) Determine whether the Veteran's headaches and problems with concentration and memory are symptoms of his service-connected PTSD or are conditions with a separate clinical diagnosis. If the conditions are disabilities with a separate clinical diagnosis: b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's residuals of a traumatic head injury to include, but not limited to, headaches and problems with concentration and memory were caused by his service-connected PTSD. c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's residuals of a traumatic head injury to include, but not limited to, headaches and problems with concentration and memory were aggravated by (worsened beyond normal progression) his service-connected PTSD. In rendering the requested opinion, the examiner's attention is invited to (i) a November 2011 correspondence from Dr. L. J., a private physician, wherein he indicated that in relation to the Veteran's attention, memory, and concentration, the comorbidity of the Veteran's PTSD would need to be considered; and (ii) an October 2018 VA medical opinion indicating that the Veteran's PTSD and mood disorder may be playing a role in his headaches and memory and concentration problems. The examiner is reminded that causation and aggravation are separate inquiries, and therefore, separate findings and rationales should be provided for each one. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.