Citation Nr: 21073255 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-03 393 DATE: December 8, 2021 ORDER Before October 27, 2016, a rating of 70 percent for adjustment disorder with posttraumatic stress disorder (PTSD) is granted. On and after October 27, 2016, a rating in excess of 70 percent for adjustment disorder with PTSD is denied. Before September 27, 2017, a rating in excess of 10 percent for a traumatic brain injury (TBI) is denied. On and after September 27, 2017, a rating in excess of 40 percent for a TBI is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. At all times throughout the appeal, the Veteran's adjustment disorder with PTSD has resulted in symptoms producing, at worst, occupational and social impairment with deficiencies in most areas; however, total social and occupational impairment has not been demonstrated at any time. 2. Before September 27, 2017, the Veteran's TBI was manifested by symptoms producing no greater than level 1 impairment in at least one facet of cognitive impairment. 3. On and after September 27, 2017, the Veteran's TBI has been manifested by symptoms producing no greater than level 2 impairment in at least one facet of cognitive impairment. 4. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. Before October 27, 2016, the criteria for a disability rating of 70 percent for adjustment disorder with PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9413. 2. On and after October 27, 2016, the criteria for a disability rating in excess of 70 percent for adjustment disorder with PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9413. 3. Before September 27, 2017, the criteria for a disability rating in excess of 10 percent for a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 4. On and after September 27, 2017, the criteria for a disability rating in excess of 40 percent for a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 5. The criteria for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2007 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Agency of Original Jurisdiction (AOJ). An October 2015 rating decision continued the existing 30 percent rating of adjustment disorder with PTSD. A March 2016 rating decision, in pertinent part, continued the existing 10 percent rating of the Veteran's TBI. An October 2017 rating decision increased the rating of the Veteran's TBI to 40 percent effective September 27, 2017. A December 2020 rating decision increased the rating of adjustment disorder with PTSD to 70 percent effective October 27, 2016, and it denied the claim for a TDIU. This matter was previously before the Board in April 2020, when it remanded the Veteran's claims in order to provide the Veteran with an additional examination addressing the severity of his disabilities, and to adjudicate the claim for a TDIU. The Veteran underwent the requested examinations in September 2020, October 2020, and February 2021. The AOJ has substantially complied with the Board's April 2020 remand directives, and the Board will proceed to a decision. Increased Ratings Increased Rating for Adjustment Disorder with PTSD The Veteran seeks ratings in excess of 30 percent before October 27, 2016, and in excess of 70 percent on and after October 27, 2016. The Veteran has otherwise been diagnosed with a TBI. When, as in this case, the Veteran has a diagnosed psychiatric disorder, the rating criteria for TBI direct VA to evaluate emotional and behavioral dysfunction separately under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board will thus evaluate the Veteran's psychiatric symptoms separately from the Veteran's other symptoms of TBI. Under the General Formula for Mental Disorders (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, 114-18 (Fed. Cir. 2013). The General Formula provides for the following ratings, in pertinent part: 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 when symptoms such 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 cause total occupational and social impairment. Turning to the facts in this case, the Veteran filed a claim for an increased rating in May 2015. The Veteran underwent a VA examination in September 2015, at which time he reported that he had a "great relation" with his spouse of three years, who was supportive of him. The Veteran had a daughter, and he indicated that he had good relationships with his family. The Veteran reported having one close friend and many friends from the military. The Veteran enjoyed fishing and being with his family. The Veteran reported spending a typical day taking care of his daughter, doing chores, and repairing and riding his motorcycle. The Veteran had worked full-time for the past 4 months in maintenance at an automobile company. The Veteran reported enjoying his job, and his performance and attendance were good. The Veteran reported generally getting along well with others at work. The Veteran indicated that his psychological symptoms, including sleep disturbances, anxiety, anger, and depression had improved since he began using medical marijuana, undergoing psychiatric treatment, and taking psychiatric medications. The Veteran denied suicidal or homicidal ideation. The examiner indicated that the Veteran's symptoms included a depressed mood, anxiety, and chronic sleep impairment. The examiner found the Veteran to be competent to manage his financial affairs. The examiner opined that the Veteran's psychiatric symptoms resulted in 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 Veteran underwent an additional VA examination in March 2016, at which time he reported that he lived with his spouse and daughter. The Veteran reported that his spouse was "very supportive" despite occasional arguments, and he had a "great relationship" with his daughter. The Veteran reported having a couple of civilian friends and other friends from the military. The Veteran enjoyed fishing, working on his motorcycle, and spending time with his family. The Veteran reported spending a typical day taking care of his daughter, doing outside work, and helping with cooking. The Veteran continued to work full-time in maintenance at an automobile company. The Veteran reported enjoying his job, and his performance and attendance were good. The Veteran reported experiencing difficulties with anxiety, anger, sleep, and mood generally. The Veteran indicated that the use of medical marijuana helped control his symptoms, enabling him, for example, to calm down enough to go to the grocery store. The Veteran denied experiencing suicidal or homicidal ideation. The examiner indicated that the Veteran's symptoms included a depressed mood, anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner found the Veteran to be competent to manage his financial affairs. The examiner opined that the Veteran's psychiatric symptoms resulted in 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 Veteran underwent an additional examination in September 2020, at which time the Veteran reported that he was in the process of divorcing his spouse, whom he had left earlier in the year as a result of constant fighting. The preceding summer, following an argument with his spouse, the Veteran intentionally ran his motorcycle off the rode and broke his femur. The Veteran visited his daughters a couple of times a week but was occasionally too angry to spend time with them. The Veteran visited his parents weekly and reported that his mother was "good at calming him down". The Veteran had little contact with the rest of his family. The Veteran got along well with a childhood friend, and he maintained relationships with a few friends from the military. The Veteran spent most of his time alone, and he avoided crowds. The Veteran reported having a half dozen jobs over the past four years, and he attributed his frequent changes in employment to his anger or "not calling and not showing up". For the preceding year, the Veteran had worked a part-time schedule for a childhood friend who tolerated the Veteran's absences due to depression and anger. A year and a half before the examination, the Veteran was fired from a job after choking a coworker who had surprised him. The examiner found that the Veteran's symptoms included a depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control. The examiner opined that the Veteran's psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. In December 2020, an examiner diagnosed the Veteran with intermittent explosive disorder. In addition to VA examination reports, the Board has reviewed the Veteran's mental health treatment records, which show a symptom picture that is broadly consistent with that which is reflected in the above examination reports. For example, in August 2015, the Veteran told a clinician that he experienced episodes of anger resulting in blackouts up to five times a week. The Veteran reported that he lived with his "supportive" spouse and daughter, and the Veteran occasionally saw friends from high school. In January 2016, the Veteran sought emergency treatment as the result of a "blackout session" following an argument with his spouse during which time he retrieved an unloaded gun. In March 2016, a VA psychiatrist stated that the Veteran had held 10 to 12 jobs since his 2009 separation from service, with many periods of unemployment. Many of these jobs were temporary in nature, and he was able to maintain employment for 6 weeks to 2 months. The Veteran frequently missed or lost work due to depression anger, and anxiety. The Veteran current position, which he had held for "many months", was in the midnight shift and largely separated him from others. The clinician indicated that the Veteran's psychiatric disability "profoundly, pervasively, and severely impacted" his personal and professional functioning. On October 27, 2016, the Veteran was arrested following his assault of several people at a bar and his subsequent attempt to resist the police. Turning to an analysis of these facts, the Board finds that the social and occupational impairment associated with the Veteran's psychiatric symptoms is best approximated by a single 70 percent rating throughout the appeal. In support of this finding, the Board notes that the December 2020 rating decision granting a 70 percent rating did so on the basis of the bar fight and arrest that occurred on October 27, 2016. The record demonstrates, however, that the psychiatric symptoms associated with that incident existed before that time. For example, in August 2015, the Veteran reported experiencing "blackouts" of anger up to 5 times a week. In January 2016, the Veteran and his spouse sought emergency treatment for the Veteran's psychiatric symptoms following a rage blackout in which he pulled out a gun. In March 2016, a VA psychiatrist characterized the Veteran's psychiatric symptoms as "profoundly, pervasively, and severely impact[ing]" his personal and professional functioning. The Board thus finds that throughout the appeal, rather than only as of the date of the Veteran's October 27, 2016, assault, the Veteran showed the occupational and social impairment with deficiencies in most areas that is associated with a 70 percent rating. In making this determination, the Board acknowledges that neither the September 2015 nor the March 2016 examiner concluded that the Veteran's psychiatric symptoms resulted in a degree of impairment associated with a 70 percent rating. The Board places relatively less probative weight on these reports than on the above-discussed incidents and findings of clinicians treating the Veteran's psychiatric symptoms. With that said, the Board finds that the weight of the evidence is against a finding that the Veteran's psychiatric symptoms have at any time produced the total occupational and social impairment that is associated with a 100 percent rating. While, as discussed above, the Veteran has shown severe psychiatric impairment throughout the appeal, he has maintained relationships with othershe was married until 2020, and maintained a relationship with his daughters throughout the appeal. Even in September 2020, the Veteran had relationships with his parents, a few friends from the military, and a childhood friend who employed him. These social relationships are contrary to a finding that the Veteran experienced total social impairment at any time. The weight of the evidence is likewise against a finding that the Veteran's psychiatric symptoms have caused total occupational impairment. While it is well-documented that the Veteran's psychiatric symptoms impacted his occupational functioning, he worked for three different employers throughout the appeal. The Board's finding is consistent with the Veteran's own contentions regarding the severity of his symptoms. For example, in February 2021, the Veteran argued, through his representative, that an earlier effective date for the award of a 70 percent rating was warranted. In sum, the Board finds that the preponderance of the evidence favors the assignment of a 70 percent disability rating for the Veteran's adjustment disorder with PTSD throughout the appeal. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for TBI The Veteran seeks ratings in excess of 10 percent before September 27, 2017, and in excess of 40 percent on and after September 27, 2017. As noted above, when, as in this case, the Veteran has a diagnosed psychiatric disorder, the rating criteria for TBI direct VA to evaluate emotional and behavioral dysfunction separately under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board has separately evaluated the Veteran's psychiatric symptoms from the Veteran's other symptoms of TBI. Three main areas of dysfunction may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment involves decreased memory, concentration, attention, and executive functions of the brain. The term "executive functions" includes goal setting, speed of information processing, planning, organizing, prioritizing, self monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when such actions are not productive. Cognitive impairment is evaluated according to the table entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Any residual with a distinct diagnosis, however, may be evaluated under another diagnostic code, 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. When there is a diagnosis of a mental disorder, emotional and behavioral dysfunction is to be evaluated under the General Rating Formula for Mental Disorders. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. Residuals not listed above that are reported on an examination report are to be evaluated under the most appropriate diagnostic code. Each condition shall be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and each separately rated condition shall be combined under 38 C.F.R. § 4.25. 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. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 facets of TBI related to cognitive impairment and subjective symptoms. These 10 facets are as follows: (I) Memory, attention, concentration, and executive function; (II) Judgment; (III) Social interaction; (IV) Mental orientation; (V) Motor activity (impact on motor and sensory systems); (VI) Visual and spatial orientation; (VII) Subjective symptoms; (VIII) Neurobehavioral effects; (IX) Communication; and (X) Consciousness. This table provides criteria for levels of impairment for each facet, ranging from 0 to 3, and a fifth level, the highest level of impairment, labeled "total." A 100 percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: if the highest facet is 0, then a 0 percent evaluation applies; if the highest facet is 1, then a 10 percent evaluation applies; if the highest facet is 2, then a 40 percent evaluation applies; if the highest facet is 3, then a 70 percent evaluation applies. For example, a 70 percent evaluation is to be assigned if 3 is the highest level of evaluation for any facet. There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a co morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, VA cannot assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, VA is to assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. If, however, the manifestations are clearly separable, VA is to assign a separate evaluation for each condition. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. The term "instrumental activities of daily living" refers to activities other than self care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "activities of daily living," which refers to basic self care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Turning to the facts in this case, the Veteran filed a claim for an increased rating in October 2015. The Veteran underwent a VA examination in February 2016, at which time he reported that his headaches were either the same or improved since 2010. The Veteran had no complaints relating to memory, attention, concentration, or executive functioning. The Veteran's judgment was normal, his social interactions were routinely appropriate, and he was always oriented to person, time, place, and situation. The Veteran's motor activity and visual spatial orientation were normal. The Veteran had no subjective symptoms or neurobehavioral effects. The Veteran could both communicate by and comprehend spoken and written language. The Veteran's consciousness was normal. In a February 2016 examination, the Veteran reported experiencing mild, non-prostrating headaches up to three times monthly, with each headache lasting up to two hours. The Veteran did not experience any associated non-headache symptoms. The Veteran underwent an additional VA examination in September 2017, at which time the examiner found objective evidence of a mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Veteran stated that he struggled with short-term memory problems that resulted in symptoms such as losing and misplacing items and forgetting information given to him verbally. The Veteran's judgment was normal, his social interactions were routinely appropriate, and he was always oriented to person, time, place, and situation. The Veteran's motor activity was normal. The Veteran's visual spatial orientation was mildly impaired, with the Veteran occasionally getting lost in unfamiliar surroundings and having difficulty reading maps or following directions, but able to use assistive devices. The Veteran reported becoming more easily confused when driving. The examiner found that the Veteran's TBI resulted in three or more subjective symptoms that mildly interfered with work, the instrumental activities of daily living, family, and other close relationships. The Veteran reported experiencing headaches, intermittent dizziness, and tinnitus. The Veteran had no neurobehavioral effects. The Veteran could both communicate by and comprehend spoken and written language. The Veteran's consciousness was normal. The examiner indicated that the Veteran's residual symptoms of TBI included headache. In October 2017, the Veteran reported experiencing non-prostrating headache pain with associated nausea, light sensitivity, and sound sensitivity. The Veteran's headaches typically lasted for less than one day. The Veteran underwent an additional VA examination in October 2020, at which time the examiner found objective evidence of a moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. The examiner noted that the Veteran forgot appointments and could not maintain focus. The Veteran's judgment was normal. The Veteran's social interaction was occasionally inappropriate, with the Veteran experiencing outbursts with work colleagues and a bar fight a few years before. The Veteran was occasionally disoriented to time, forgetting what day it was. The Veteran's motor activity was normal. The Veteran's visual spatial orientation was mildly impaired, with the Veteran occasionally getting lost in unfamiliar surroundings and having difficulty reading maps or following directions, but able to use assistive devices. The Veteran could not drive without a GPS. The Veteran found that the Veteran's subjective symptoms of headaches and anxiety did not interfere with work, the instrumental activities of daily living, family, and other close relationships. The Veteran experienced one or more neurobehavioral effects that occasionally interfered with workplace or social interactions but did not preclude them. The Veteran was able to both communicate by and comprehend spoken and written language. The Veteran's consciousness was normal. The examiner indicated that headache was the Veteran's only residual symptom of TBI. In October 2020, the Veteran reported experiencing daily headaches, sometimes more than once per day, with each headache lasting up to six hours. The examiner found the Veteran to have characteristic prostrating attacks of headache pain more frequently than once monthly. The examiner found that the Veteran did not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The Veteran's headaches resulted in non-headache symptoms including nausea, light sensitivity, and sound sensitivity. The Veteran underwent an additional VA examination in December 2020, at which time the examiner diagnosed the Veteran with a TBI, intermittent explosive disorder, and posttraumatic headaches. The Veteran indicated that he experienced headaches, tinnitus, and nosebleeds as a result of his TBI. The examiner found objective evidence of a mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The examiner noted that the Veteran had to use reminders to complete tasks, forgot conversations, and lacked an ability to concentrate at work because of the intensity of his headaches. The examiner found that the Veteran had a mild impairment of judgment resulting in an occasional inability to identify, understand, and weigh alternatives, to understand the consequences of his choices, and to make a reasonable decision in complex or unfamiliar situations. The examiner noted that the Veteran employed a daily routine to keep his life in order, but he had occasionally locked himself out of the house and occasionally failed to remember or understand to turn off the stove after cooking. The Veteran's social interactions were occasionally inappropriate, with the Veteran reporting that he lost orientation after getting into public arguments with his spouse. The Veteran otherwise indicated that he had been aggressive to bystanders while in bars. The examiner found the Veteran to be always oriented to person, time, place, and situation. The Veteran's motor activity was normal. The Veteran's visual spatial orientation was mildly impaired, with the Veteran occasionally getting lost in unfamiliar surroundings and having difficulty reading maps or following directions, but able to use assistive devices. The Veteran reported getting lost in unfamiliar surroundings when having a headache or when having a "freak out" attack. The Veteran indicated that when this occurred while he was driving, he had to pull over to regain his bearings or call his spouse to clarify where he needed to drive. The examiner found that the Veteran's TBI resulted in three or more subjective symptoms that moderately interfered with work, the instrumental activities of daily living, family, and other close relationships. The Veteran reported experiencing frequent insomnia and headaches, tinnitus, and hypersensitivity to sound and light. The Veteran experienced one or more neurobehavioral effects that occasionally interfered with workplace or social interactions but did not preclude them. The Veteran described experiencing irritability, impulsivity, a lack of motivation, verbal aggression, physical aggression, moodiness, and a lack of cooperation. The Veteran was able to both communicate by and comprehend spoken and written language. The Veteran's consciousness was normal. The examiner indicated that the Veteran's residual symptoms of TBI were tinnitus, headaches, a mental disorder, occasional aggression, a lack of concentration, a lack of focus, a lack of motivation, and mild short term memory recall problems. Turning to an analysis of these facts, as noted above, the criteria for evaluating TBI indicate that emotional and behavioral dysfunction associated with TBI is to be evaluated under the schedule of ratings applicable to mental disorders. The Board has thus considered the Veteran's emotional and behavioral symptoms in its decision to grant a single 70 percent rating for the Veteran's adjustment disorder with PTSD. As a result, the Board will not consider the judgment, orientation, or neurobehavioral facets because such symptoms have already been addressed by the Board's assignment of a single 70 percent disability rating for the Veteran's psychiatric disability. With regard to the appropriate rating under the remaining TBI facets, before September 27, 2017, the Board assigns a level of severity of "0" for the memory, attention, concentration, and executive function facet, because the Veteran reported no complaints relating to memory, attention, concentration, or executive function at the time of his February 2016 examination. On and after September 27, 2017, the Board assigns a level of severity of "2" for this facet because September 2017 and December 2020 examiners found that objective evidence on testing showed a mild impairment of memory, attention, concentration, and executive function. In making this determination, the Board acknowledges that the October 2020 examiner found a moderate impairment of memory, attention, concentration, and executive function, which is associated with a level of severity of "3". With that said, the examiner's finding is based not on the results of objective testing as required by the rating criteria, but instead on the Veteran's subjective report of his symptoms. The Board thus finds that on and after September 27, 2017, the Veteran showed a maximum level of severity of "2" under the memory, attention, concentration, and executive function facet. A level of severity of "0" has been assigned to the motor activity facet because the Veteran's motor activity has been consistently normal. A level of severity of "1" has been assigned to the visual spatial orientation facet because the weight of the evidence, including the findings of examiners in September 2017, October 2020, and December 2020, found the Veteran's visual spatial orientation to be mildly impaired. Before December 2020, a level of severity of "0" has been assigned to the subjective symptoms facet because the Veteran did not show three or more subjective symptoms of TBI that are not already addressed under the Veteran's existing 70 percent rating for an acquired psychiatric disability and his 10 percent rating for tinnitus. As of December 2020, a level of severity of "2" has been assigned to the subjective symptoms facet because the December 2020 examiner described three subjective symptomsheadache, hypersensitivity to sound, and hypersensitivity to lightthat are not already addressed under the Veteran's existing ratings, and that result in a moderate functional impairment. A level of severity of "0" has been assigned for the communication facet because the Veteran has consistently been able to communicate in and comprehend spoken and written language. The Veteran has remained fully conscious throughout the period on appeal. A total rating based on an altered state of consciousness is not warranted. Accordingly, upon review of the TBI facets, and disregarding those facets addressing symptoms that have been evaluated as part of the 70 percent rating for the Veteran's acquired psychiatric disability and the 10 percent rating for tinnitus, the Board finds that before September 27, 2017, the highest facet evaluation is "1", which corresponds to the existing 10 percent rating under the criteria applicable to TBI. On and after September 27, 2017, the highest facet evaluation is "2", which corresponds to the existing 40 percent rating under the criteria applicable to TBI. The Board has additionally considered whether a greater rating is warranted by separately evaluating the Veteran's headache disability under Diagnostic Code 8100, applicable to migraine headaches, rather than under the Diagnostic Code applicable to TBI. Under these rating criteria, in pertinent part, characteristic prostrating attacks occurring on an average of once a month over the last several months warrants a 30 percent rating; very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability warrants a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The term "prostrating attack" is not defined in regulation or case law. Fenderson v. West, 12 Vet. App. 119, 126 27 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). The Board otherwise notes that prostration is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). Turning to an analysis of the facts in this case, the weight of the evidence, including the findings of all examiners, does not support a finding that the Veteran's headaches have resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, a 50 percent rating is unwarranted at any time under the rating criteria applicable to headaches. On and after September 27, 2017, the Veteran's headache disability is thus already in receipt of a maximum 40 percent rating under the diagnostic criteria applicable to TBI. With a 50 percent rating for headaches unwarranted at any time, the Board will next address whether a 30 percent rating of the Veteran's headaches is available before September 27, 2017. Such a rating requires that the Veteran experienced characteristic prostrating attacks occurring on an average of once a month over a period of several months. At no time before September 27, 2017, did examiners or clinicians characterize the severity of the Veteran's migraine headaches in this way, with the February 2016 examiner finding the Veteran's headaches to be non-prostrating. Thus, upon review of the entirety of the medical evidence, the Board finds that the Veteran's headache disability did not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability before September 27, 2017, nor did it result in characteristic prostrating attacks occurring on an average of once a month over a period of several months before this time. Thus, separately addressing the Veteran's headache disability under Diagnostic Code 8100 does not result in ratings in excess of those currently assigned under the criteria applicable to TBI. TDIU VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing or following a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. When, as in this case, there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The combined ratings of the Veteran's service connected adjustment disorder with PTSD, TBI, and tinnitus meet the schedular criteria for the award of a TDIU throughout the appeal period. A substantially gainful occupation is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment is generally "marginal" when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Employment may be marginal even when earned annual income exceeds the poverty threshold when, for example, the veteran is employed in a protected environment such as a family business or sheltered workshop. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). A veteran may be granted TDIU despite being employed and having an income in excess of the poverty threshold if his employment is sheltered. See Cantrell v. Shulkin, 28 Vet. App. 382, 389 (2017). Turning to the facts in this case, the Veteran has maintained employment since filing his May 2015 claim for benefits. In May 2015, the Veteran had been employed as a forklift operator since February 2015, with the Veteran reporting monthly earnings of $1,350. The Veteran was employed as a laborer from June 2015 to March 2016, with monthly earnings of $1,550. The Veteran was employed from April 2016 to June 2016 as a pressure washer with monthly earnings of $1,600; the Veteran's employer indicated that the Veteran's employment ended because there was not enough work. The Veteran was employed from June 2016 to April 2019 as a mail clerk and courier, with monthly earnings of $2,140; in September 2020, the Veteran's employer reported not knowing the reason for the ending of the Veteran's employment. In November 2020, the Veteran's employer stated that the Veteran had been employed full-time since May 2019 as a general laborer and welder, with the Veteran earning $14,640 during the preceding 12 month period. The evidence of record indicates that the Veteran's earned annual income consistently exceeded the poverty threshold for one person, and the Veteran has not contended otherwise. In June 2015, the Veteran indicated that he had been unable to maintain steady employment for the past two years as a result of his service-connected disabilities. In August 2015, a clinician noted that the Veteran had worked in "lots of temp jobs" since his separation from service, with the Veteran "walk[ing] off a few of the temp jobs because [of] anger". The clinician noted that the Veteran had "issues holding down a job because of anger issues . . . volatile mood swings". In September 2015, the Veteran reported enjoying his job, and his performance and attendance were good. In February 2016, an examiner found that the Veteran's TBI symptoms, including headache, would not impact his ability to work. In March 2016, a VA psychiatrist stated that the Veteran frequently missed or lost work due to depression, anger, and anxiety. The Veteran's current position, which he had held for "many months", was in the midnight shift and largely separated him from others. In September 2017, an examiner opined that the Veteran's TBI symptoms impacted his ability to work. The Veteran reported that his poor short-term memory caused him to have difficulty working, and he reported having to miss work as the result of headaches. In October 2017, an examiner found that the Veteran's headache symptoms affected his ability to work. The Veteran stated that he drove a truck for a living and occasionally had to pull over and rest as a result of his headache pain. The Veteran additionally stated that he occasionally had to leave work as a result of his headache pain. In February 2018, a clinician noted that the Veteran was employed full time without any formal accommodations in place. In September 2020, an examiner opined that the Veteran's severe anxiety and depression resulted in frequent episodes of panic and anger that significantly interfered with his ability to sustain either physical or sedentary employment in a competitive workplace. The examiner noted that the Veteran worked for an old friend who accepted the frequent absences caused by the Veteran's anxiety and depression. In October 2020, an examiner indicated that the Veteran's headaches caused him to miss several days of work per month. The Veteran was fired from his job in the spring of 2019, and he had worked in a friend's auto shop since that time. The Veteran's headaches and TBI caused him to have difficulty performing and completing complex tasks, and he could not perform or complete duties requiring a prolonged attention to detail. The examiner indicated that the Veteran's difficulties with maintaining gainful employment were worsening. In December 2020, an examiner opined that the Veteran's TBI residuals impacted his ability to work as the result of symptoms such as occasional headaches, tinnitus, irritability, moodiness, sensitivity to sound and light, occasional aggression, a lack of concentration, a lack of focus, a lack of motivation, and mild short term memory problems. The Veteran stated that he had to leave work, take breaks, or sit down when his symptoms flared up. The examiner indicated that these symptoms made it difficult for the Veteran to function in a work environment and placed the Veteran at risk for being fired, reprimanded, or losing pay. In February 2021, an examiner noted that the Veteran's TBI symptoms resulted in headaches and episodes of impulsive, aggressive, violent behavior. The Veteran's symptoms resulted in difficulty concentrating, completing tasks, and being among other people. The Veteran's TBI symptoms resulted in difficulty completing tasks assigned by others or working closely with others. Turning to an analysis of this evidence, as noted above, the Veteran has been employed throughout the appeal period, with his reported annual earned income above the poverty line. With that said, the Veteran's employment may nonetheless be marginal, rather than substantially gainful, if the facts demonstrate that the Veteran has been employed in a protected environment such as a family business or sheltered workshop. Before May 2019, the evidence does not suggest that the Veteran worked in a sheltered or protected environment, and the Veteran has not so alleged. With that said, the Veteran has reported working for a friend since May 2019, with the September 2020 examiner noting that the friend accepted the Veteran's frequent absences. This allegation suggests that the Veteran's employment since May 2019 may have been protected, akin to working in a family business. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). While the Board has considered these allegations, in November 2020, the employer in question, an industrial fabrication company, reported that the Veteran had lost no time from work as a result of disability, and it did not report making any concessions to the Veteran as the result of his disability. The employer's report does not support the Veteran's allegation that it tolerated frequent absences, nor is there other evidence supporting the Veteran's suggestion that his employment with this company is protected. The Board thus finds that the Veteran has maintained substantially gainful employment throughout the appeal, including since May 2019. Even if, however, the Board were to find that the Veteran's employment since May 2019 was protected and therefore not substantially gainful, the weight of the evidence is against a finding that the Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. While clinicians and examiners have consistently found the Veteran's disabilities to impact his ability to work, there has not been a similar finding that they prevent his ability to work. In this regard, the Board does not doubt that the Veteran's service-connected disabilities indeed affect his employability, as evidenced by the Veteran's combined disability rating, which, pursuant to the grant of an increased rating for adjustment disorder with PTSD, is now 80 percent throughout the appeal. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, upon a thorough review of the evidence of record, the Board finds that the Veteran is not precluded from engaging in substantially gainful employment as a result of his service-connected disabilities alone. The benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.