Citation Nr: 21075450 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-35 008 DATE: December 20, 2021 ORDER From November 26, 2014 to November 8, 2018, entitlement to an initial 70 percent disability rating for posttraumatic stress disorder (PTSD) with major depressive disorder is granted. From November 9, 2018, entitlement to an initial 70 percent disability rating for PTSD with major depressive disorder and residuals of traumatic brain injury (TBI) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire portion of the appeal period prior to November 9, 2018, the Veteran's PTSD with major depressive disorder was manifested by occupational and social impairment with deficiencies in most areas, but not total social impairment. 2. On and after November 9, 2018, the Veteran's PTSD with major depressive disorder and residuals of a TBI was manifested by occupational and social impairment with deficiencies in most areas, but not total social impairment. CONCLUSIONS OF LAW 1. From November 26, 2014 to November 8, 2018, the criteria for entitlement to an initial 70 percent disability rating for PTSD with major depressive disorder have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.4, 4.7, 4.130, Diagnostic Code 9411. 2. From November 9, 2018, the criteria for entitlement to an initial 70 percent disability rating for PTSD with major depressive disorder and residuals of TBI have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.4, 4.7, 4.124a, 4.130, Diagnostic Code 9411-8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from January 1987 to January 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision. The May 2015 rating decision granted entitlement to service connection for PTSD with major depressive disorder and assigned an initial 30 percent disability rating effective from November 26, 2014 under Diagnostic Code 9411. 38 C.F.R. § 4.130. After the Veteran perfected his appeal of this initial assigned rating to the Board, the Board issued an October 2018 decision that remanded the issue to the agency of original jurisdiction (AOJ) for additional development and adjudication. During the pendency of this remand, the Veteran submitted a service connection claim for a TBI on November 9, 2018. See VA Form 21-526EZ received on November 9, 2018. The AOJ subsequently issued a January 2019 rating decision that implicitly granted service connection for residuals of TBI and evaluated it together with the Veteran's PTSD with major depressive disorder. See also May 2020 Supplemental Statement of the Case (SSOC). The disability was recharacterized as PTSD with major depressive disorder and residuals of TBI, and the disability rating was increased to 40 percent effective from November 9, 2018, the date the Veteran's service connection claim for a TBI was received, under Diagnostic Code 9411-8045. 38 C.F.R. §§ 4.124a, 4.130. As the assigned evaluations were less than the maximum available rating, the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an October 2020 decision, the Board denied entitlement a rating in excess of 30 percent for PTSD with major depressive disorder prior to November 9, 2018; and a rating in excess of 40 percent for PTSD with residuals of TBI from November 9, 2018. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). The Board notes that in an April 2019 statement submitted during the pendency of the increased rating claim on appeal, the Veteran reported that pain from his ankles, knees, and hips was affecting his work; and he did not believe he would be able to work any longer. As the Veteran is currently service-connected for left hip and bilateral knee disabilities, the Board finds that this statement raises the question of whether the Veteran is unable to secure or follow a substantially gainful employment as a result of service-connected disabilities. Thus, the Board has assumed jurisdiction over the issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that after the May 2020 SSOC, additional VA treatment records dated from May 2020 to June 2020 were associated with the claims file. Although the Veteran has not provided a waiver of the AOJ's initial review of this additional evidence, these records provide information that is either duplicative of the prior evidence of record or has no material effect on the outcome of the increased rating claim adjudicated herein. As such, the Board finds that a remand for initial AOJ review of this evidence in relation this claim is not necessary, and there is no prejudice to the Veteran in proceeding with the adjudication of this claim. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 1. Entitlement to an initial disability rating in excess of 30 percent for PTSD with major depressive disorder prior to November 9, 2018. 2. Entitlement to an initial disability rating in excess of 40 percent for PTSD with major depressive disorder and residuals of TBI on and after November 9, 2018. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. As indicated above, the Veteran's disability was first characterized as PTSD with major depressive disorder and assigned an initial 30 percent disability rating under Diagnostic Code 9411 for the period prior to November 9, 2018. 38 C.F.R. § 4.130. On and after November 9, 2018, the disability was recharacterized as PTSD with major depressive disorder and residuals of TBI, and the disability rating was increased to 40 percent under Diagnostic Code 9411-8045. 38 C.F.R. §§ 4.124a, 4.130. Although the January 2019 rating codesheet only reflects the new characterization of the disability as PTSD with major depressive disorder and residuals of TBI, the codesheet nevertheless shows that the disability was only evaluated under Diagnostic Code 9411 prior to November 9, 2018. Thereafter, the disability was awarded the increased 40 percent rating under Diagnostic Code 9411-8045 when the residuals of a TBI were evaluated with the disability. As such, both the May 2020 SSOC and prior October 2020 Board decision indicated that the issue should be characterized as entitlement to an initial disability rating in excess of 30 percent for PTSD with major depressive disorder prior to November 9, 2018; and entitlement to an initial disability rating in excess of 40 percent for PTSD with major depressive disorder and residuals of a TBI on and after November 9, 2018. Notably, the parties did not take issue with this characterization in the Joint Motion. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. If the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen (that is, basis first, the residual always come second). Id. Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from TBI and have profound effects on functioning: Cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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. Cognitive impairment is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. 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 are evaluated, 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 Traumatic Brain Injury Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" table. 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. 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, evaluate under the most appropriate diagnostic code. Each condition should be evaluated 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 need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. should also be considered. Id. Under Diagnostic Code 8045, the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of traumatic brain injury 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." A 100 percent evaluation will be assigned it "total" is the level of evaluation for one or more facets. If no facet is evaluated at "total," the overall evaluation is based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. However, not every facet has every level of severity. The "subjective symptoms" facet, for example, provides for an impairment level of 0, 1, or 2, which corresponds to 0 percent; 10 percent; and 40 percent, respectively. Notes are included with Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of Traumatic Brain Injury Not Otherwise Classified" with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury 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. The Veteran's PTSD with major depressive disorder is contemplated by 38 C.F.R. § 4.130, Diagnostic Code 9411; however, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. This rating criteria provides for a 30 percent rating 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 awarded 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., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear 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. Vasquez-Claudio, 713 F.3d at 118. The Board acknowledges that psychiatric examinations frequently include the assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has been officially released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. The Court added that it does not hold that the Board commits prejudicial error every time the Board references GAF scores in a decision. As this appeal was initially certified to the Board in November 2015, the DSM-5 criteria apply to this case. Consequently, the Board will not afford any probative value to any GAF scores that are documented in the record. In a March 2015 letter, Dr. M., MD, stated that the Veteran had been his Dr. M.'s patient since 2007. Dr. M. had been treating him for depression and PTSD since approximately 2013. The Veteran reported at that time that he had been having issues with depression since approximately 2001. Although the Veteran had been going to counseling, he stopped until the fall of 2013. The Veteran had experienced episodes of deep sadness; crying spells; extreme anger; and detachment from his family, specifically his wife. The Veteran sought treatment in October 2013 at the urging of his father. He tried fluoxetine for a few months, but the medication was not helpful for long. He had been on sertraline since March 2014 with much improvement in mood. He also continued to receive counseling which was a huge help for him. In another March 2015 letter, P.D., MS, LMHC, noted that she had provided counseling to the Veteran in couples therapy since 2011, and on an individual basis beginning in November 2013. The Veteran sought individual counseling at that time as he was struggling with a major depressive episode that was interfering with his ability to function in his family, his personal life, and at work. Prior to participating in individual counseling and receiving antidepressant medication from his primary care physician, the Veteran was erupting into fits of rage at his family and/or keeping away from them in silence for multiple weeks. This behavior created significant stress on the Veteran, his wife, and their two children. The Veteran sought counseling following multiple episodes in one week in which he was crying and inconsolable. The Veteran's wife and father contacted P.D. to express their concerns, and the Veteran willingly decided to attend individual therapy. P.D. stated that she and the Veteran spent a great deal of time uncovering the life experiences and circumstances that led to his rage and depression. The Veteran's transition to civilian life after the Army had an immense impact, with his feelings of security, his ability to provide for his family, and his self-worth plummeting. The Veteran lost his job more than one time, and these events further damaged his self-worth and agency. The Veteran was beginning to process his feelings, make changes in his life, and rebuild damaged relationships. These efforts had been, and would continue to be, a slow process. P.D. noted DSM-5 diagnoses of major depressive disorder and PTSD with delayed expression. The record indicated that the Veteran also had issues involving relationship distress with his spouse, a high expressed emotion level with family, personal of military deployment, and problems related to deployment. In a March 2015 statement, the Veteran's wife reported that she had been married to the Veteran since 2002. She stated that many years of their marriage had primarily dealt with the Veteran being depressed and/or angry. They sought marriage counseling from P.D. approximately 4 years ago at her request due to her perceptions that the Veteran's anger and thought process in dealing with simple activities were out of control. The Veteran's wife reported that at times, she did not feel safe living with the Veteran in their home, fearing what would happen when his anger became completely out of control. The Veteran also went through periods when he would completely shut down and not deal with life, her, their sons, family relationships, household responsibilities, or daily activities other than going to work. The Veteran often ate dinner after work before sitting in a living room chair in front of the television all night and going to bed early. The Veteran's wife further reported that he was moody and irritable, adding that walked on eggshells around him as he did not know what might "set him off." They could not have decent conversations for fear of how the Veteran would react if to her sharing certain words or feelings. She reported that last January 2014 through early March 2014, the Veteran completely shut down, meaning that he did not speak in the home or communicate with his wife about anything. She believed that he experienced a complete breakdown in March 2014 that resulted in him retreating to their bedroom and sobbing uncontrollably under a blanket on the bed. She stated that he was sad, confused, completely helpless, and did not know what to do. Since that time, Dr. M. put him on different medication to help with his depression. The Veteran also started seeing P.D. more regularly. The Veteran's wife summarized that it had been a full year since his breakdown, and she had been told that he had been dealing with PTSD. They had just started going back to marriage counseling to help her better understand PTSD and how to make their marriage work in light of this disability. In May 2015, a VA examiner completed a PTSD Disability Benefits Questionnaire (DBQ). The diagnoses were PTSD and major depressive disorder. The examiner added that the Veteran did not have a diagnosed TBI. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner also opined that it was not possible to differentiate what portion of each symptom and/or what level of occupational and social impairment was attributable to each diagnosis as depression was both a diagnosis and a symptom, including of PTSD. It was not possible to differentiate the portion of the Veteran's symptoms to either diagnosis, although the examiner indicated that any reexperiencing was attributable to PTSD. In this regard, the Board notes that both PTSD and major depressive disorder are included in the Veteran's service-connected disability. Regarding the Veteran's social functioning, the Veteran was married with two minor children. The Veteran and his wife had never been separated, and he described their marriage as stable. He also occasional contact with a sister, and he had friends with whom he socialized "off and on." The examiner indicated that the Veteran was currently working in a shipping position. The Veteran reported that he first began to seek treatment for PTSD or depression after he had an emotional breakdown in 2013 when he could no longer handle things. The Veteran was prescribed the antidepressant medication sertraline which he found helpful. He was also seeing a private therapist after attempting to schedule treatment with VA. The Veteran had never used illicit drugs, and he reduced his drinking following an arrest for a DWI in 1986. The Veteran's current symptoms were noted to include a depressed mood, anxiety, and suspiciousness. He also experienced a flattened affect; a chronic sleep impairment; and mild memory loss, such as forgetting names, directions, or recent events. In addition, he had difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner described the Veteran as reserved. The examiner reported that the Veteran could not recite serial sevens without difficulty, he did not recite months of the year in reverse order, he inconsistently recalled five digits forward, he could not spell a selected work forward and backward, he recalled one of three items after five minutes, and he recalled four of the last five presidents. Nevertheless, the examiner found that the Veteran was capable of managing his financial affairs. The examiner noted that mild PTSD appeared to be the applicable diagnosis. In the Veteran's June 2015 notice of disagreement, he reported that he had been suffering from PTSD for quite some time, and he was struggling to keep it in check. The Veteran had been seeing P.D. for over four years. The Veteran recalled that when he initially saw P.D. with his wife for marriage counseling, he experienced outbursts of anger and often left P.D.'s office in a fit of rage. He was extremely bitter, cold, and angry with his wife for things he could not explain. The Veteran reported that after his 2007 retirement from the Army, he moved with his wife to be closer to her immediate family. They lived with them for six months before the Veteran was able to secure employment. However, he was laid off a short time later due to a lack of work He was again laid off from a second position, and he was laid off from a third position after one year due to a lack of work. This time period was stressful for the Veteran, and he had difficulty sleeping, became restless, felt anxious, and he was always on the lookout as he never felt sleep. He experienced panic attacks at times during the week due to loud noise and other events, and he could not remember things. The Veteran noted that he doubted himself, and at times he wanted to kill himself. He also became extremely angry towards his family and depressed. The Veteran reported that he was laid off from his current job two days ago after working in the position for 5 years as the company was struggling to stay in business. The Veteran felt extremely anxious and stressed about finding new employment. He had not slept well since he was laid off, and he was experiencing memory problems again. The Veteran stated that he continued to see P.D. for therapy to help with his PTSD and depression. A subsequent July 2015 VA treatment record reported that the Veteran was receiving private psychotherapy and takin sertraline for mood problems. He was quite satisfied with the results of the daily medication and therapy that he attended every three weeks. The Veteran felt that this treatment had saved his marriage. In the Veteran's September 2015 VA Form 9, he reported that he was taking medication and seeing a therapist for help with his stress, anger as well as his hostility towards people and his family. He was also receiving treatment for his depression, panic attacks precipitated by hearing a loud bang, lack of sleep due to nightmares, and his thoughts of suicide. These symptoms had caused the Veteran to lose jobs, and he reported that his marriage was about to fall apart. The Veteran added that he was "at a point of just giving up." In July 2016, a VA treatment record noted that the Veteran was pleasant and cooperate, well groomed, and in no acute distress. He also had an appropriate affect, and he was alert and oriented to person, place, and time. In February 2017, a VA treatment record stated that the Veteran was requesting a sertraline medication refill for PTSD which had been stable. The Veteran was noted to be pleasant and cooperative, well-groomed, and with an appropriate affect as well as normal speech. Similar findings were noted in September 2017. In March 2018, a VA treatment record stated that the Veteran was going through a divorce, and he reported that this stress levels were higher. The assessment was stress/PTSD history, and the record noted that he was going to attempt to spend more time in nature as a stress reliever. In April 2018, a VA treatment record noted that although the Veteran was not engaging in regular exercise, he was active in warehouse work. The Veteran felt that he was appropriately dealing with the stress of divorce. He was again noted to be pleasant and cooperative, and well-groomed. Under the assessment of PTSD, current divorce-related stress was noted. The Veteran declined having any medication changes, and the record observed that he had a community therapist and received supportive counseling and education during the visit. In a May 2018 letter in the Veteran's VA treatment records, T.G., DO, noted that he was the primary care provider for the Veteran. T.G. stated that the Veteran had a history of PTSD, and he had been on a stable daily dose of sertraline for the past three years. He had not demonstrated any history of suicidal or homicidal ideations, and there was nothing in his record that indicated he had a history of violence or threats towards himself or others. Consistent with the reports from the VA treatment records, the Veteran submitted legal documents in October 2018 indicating that he was undergoing a divorce from his wife. In November 2018, a VA treatment record noted findings similar to earlier records, stating that the Veteran was pleasant, cooperative, and well-groomed; he had normal speech; and his affect was appropriate. On December 14, 2018, a VA examination specific to PTSD was conducted. The only psychiatric disorder diagnosis was PTSD. The examiner stated that the Veteran no longer met the clinical threshold for major depressive disorder, explaining that his depression symptoms were subsumed under his current PTSD diagnosis. The examiner also noted that the Veteran had a TBI diagnosis, and it was not possible to differentiate what symptoms and/or level of occupational and social impairment were attributable to TBI and any non-TBI mental health diagnoses as the Veteran's present symptoms may be exacerbated by his TBI. The examiner similarly stated in a separate section of the report that it was not possible to state what portion of the indicated emotional and behavioral signs were attributable to each diagnosis as the Veteran's present symptoms may be exacerbated by his TBI. The examiner opined that the Veteran's PTSD was 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. Regarding the Veteran's recent social history, the Veteran became separated from his wife in January 2018 and was currently residing alone. He saw his children every other weekend. The Veteran reported that his primary social support came from friends. He maintained weekly contact with his father and intermittent contact with his sister, both of whom lived in different states. The Veteran otherwise spent most of his time alone, watching television, fishing, hunting, and sometimes spending time with friends. He was able to drive and perform regular activities of daily living independently. The Veteran reported that his divorce was his primary stressor at this time. The examiner noted that after retiring from the military in 2007, he worked for months in a temp job, in a shipping/receiving position for a warehouse for another 6 months, in another warehouse for 3 to 4 months, and for a jewelry manufacturing company for 5 to 6 years until the business failed. The examiner noted that the Veteran had been running a warehouse for a tool company for the past 3 years, and the examination report noted that he was currently employed on a full-time basis. The Veteran reportedly enjoyed his job and the company. The Veteran reported that he previously experienced difficulty adjusting to civilian jobs after being in the Army, describing how people were less professional and even "back stabbing." However, he reported having no problems in his current job. The Veteran reported that he first noticed symptoms of depression and anger in the early 1990's, and these symptoms worsened when he retired from service as a result of his transition out of the military as well as his wife's lack of support and their communication difficulties. The Veteran engaged in individual therapy from 2010 until early 2018 for adjustment to civilian life and marital problems. He was not currently engaged in individual therapy or psychiatry. The Veteran had been prescribed sertraline for a few years by his primary care physician who he saw every 6 months. He had never been hospitalized for psychiatric reasons. Although the Veteran reported that his depression was manageable, he endorsed moderate depression symptoms occurring once per week and lasting for a day that were characterized by dysphoria, isolation/withdrawn, wanting to stay in bed at times, and irritability. He denied having decreased motivation and interest or anhedonia. He reported coping by going for walks in the woods and watching comedy. The Veteran reported that he was the happiest when he was with his sons. He denied current feelings of worthlessness, helplessness, and hopelessness. He also denied having current suicidal or homicidal ideation, delusions and hallucinations, or a history of manic episodes. He reported having situational anxiety symptoms characterized by nervousness in crowds, but he denied having a history of panic attacks. The Veteran also reported experiencing varied sleep patterns and averaging 5 to 8 hours of sleep per night. He was not currently taking medication for sleep, and he had never undergone a sleep study. The examiner noted that the Veteran's current symptoms included a depressed mood, anxiety, and disturbances of motivation and mood. The Veteran arrived on time for the appointment, and he was casually dressed with good hygiene. He was cooperative; engaged; attentive; alert; and oriented person, place, time, and situation. The Veteran indicated that his mood was good with a congruent affect. His range of motion was mildly constricted, his eye contact was good, and his judgement was intact. The Veteran's speech was described as normal in speed, tone, fluency, and volume. His thought content was coherent and linear, but vague; and his thought process was logical and goal-oriented towards the examination. The Veteran was a fair historian with a mildly impaired memory. The Veteran continued to be capable of managing his financial affairs. The examiner stated that the Veteran did not express or appear to pose any threat of danger to injury or self at the moment. In terms of suicidal ideation, the examiner did not believe that the Veteran should be considered a current imminent or increased risk. On December 15, 2018, a VA examiner completed an Initial Evaluation of Residuals of TBI DBQ. The diagnosis was TBI. The Veteran indicated that he had experienced headaches, vision problems, and long-term memory problems since his head injury. The Veteran reported that he did not recall his childhood. Although he complained of irritability, he reported being better able to control this symptom at present. However, the Veteran reported that he was currently going through a divorce as a result of the irritability issue. He also complained of depression and anxiety. He denied having issues with insomnia. The examiner noted that he had been at the same facility the previous day for a VA examination related to PTSD and used a GPS to locate the clinic. On the day of the current examination, he had been able to drive to the clinic from memory without difficulty. The Veteran took aspirin and Tylenol for his headaches, and he and treated his depression/anxiety with sertraline. The examiner determined that the Veteran had objective evidence on testing of mild impairment of memory, attention, concentration, or executive function resulting in mild function impairment. The examiner stated that the Veteran had mild short-term memory loss that was likely associated a TBI and PTSD. The examiner could not distinguish which one was the major factor as this was a potential effect of both conditions. There was also no documentation of long-term memory loss despite the Veteran's complaints. The examiner observed that the Veteran as able to name the last 5 US presidents in order. Although the Veteran's judgment was found to be normal, his social interaction was occasionally inappropriate. The examiner highlighted the fact that the Veteran's irritability/anger issues had broken up his marriage. As this issue could be due to PTSD and TBI, the examiner also could not rule out a contribution from both diagnoses. The examiner noted that the Veteran was always oriented to person, time, place, and situation; and both his motor activity and visual spatial orientation were normal. The Veteran experienced subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. The examiner noted that the Veteran's subjective symptoms included headaches that occurred on a daily basis, affected concentration, but did not prevent the Veteran from performing duties. The headaches were likely due to the Veteran's TBI. There were no neurobehavioral effects; the Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language; and his consciousness was normal. The examiner noted that the Veteran's current residuals attributable to a TBI included headaches. Despite the Veteran's report of vision problems, the examiner did not mark the available choice to document that the Veteran experienced a visual impairment as a result of his TBI. In addition, the examiner did not mark any of the other available choices for current residuals, including motor dysfunction; sensory dysfunction; hearing loss and/or tinnitus; alteration of sense of smell or taste; seizures; gait, coordination, and balance; speech; neurogenic bladder; neurogenic bowel; cranial nerve dysfunction, skin disorders, or dizziness/vertigo. There were also no relevant scars or other pertinent physical findings, complications, conditions, signs and/or symptoms. The examination report included an additional question stating that if the Veteran had a diagnosed TBI and a coexisting, separate psychiatric condition, it was requested for the examiner to state to the extent possible which emotional/behavioral signs and symptoms were parts of the coexisting mental disorder and which represented residuals of TBI. The examiner responded that the Veteran's headaches were likely due to his TBI. The examiner also observed that the Veteran had a psychiatric examination on December 14, 2018, and the Veteran was diagnosed with PTSD. However, the Veteran's irritability/anger issues, short-term memory loss, and anxiety/depression were all problems which can be caused by both PTSD and TBI. As a result, the examiner could not determine which condition was mostly responsible for these symptoms without resorting to mere speculation. Following this examination, a May 2019 VA treatment record reported that the Veteran's depression and suicide screening scores were negative over the past two weeks. The Veteran reported that for several days over the past two weeks, he had experienced little interest or pleasure in doing things; and he felt down, depressed, or hopeless. However, denied having thoughts that he would be better off dead or of hurting himself in some way. Another May 2019 VA treatment record noted that the Veteran was pleasant and cooperative, well-groomed, and in no acute distress. He had a normal speech pattern and appropriate affect. In May 2020, a VA treatment record reported that the Veteran's mood had been ok. He was approximately one year post-divorce, and he was working on maintaining a good relationship with his boys. The record added that the COVID situation made that effort a little tougher. The Veteran's depression and suicide screening scores continued to be negative. He reported that over the past two weeks, he had not experienced symptoms of little interest or pleasure in doing things; and he had felt down, depressed, or hopeless for several days. He had not experienced thoughts that he would be better off dead or of hurting himself in some way. As noted above, the Veteran's disability has been evaluated under Diagnostic Code 9411 prior to November 9, 2018; and under Diagnostic Code 9411-8045 on and after November 9, 2018 in recognition of the addition of residuals of TBI to the Veteran's service-connected psychiatric disability. As indicated under Note (1) to Diagnostic Code 8045, the Board may not assign more than one evaluation based on the same manifestations. In addition, emotional/behavioral dysfunction resulting from TBI is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. Here, the Veteran clearly has a diagnosed mental disorder of PTSD. The December 2018 VA examination further reflects that there is overlap of the Veteran's PTSD and TBI, including his mild impairment of memory and occasionally inappropriate social interaction. The December 2018 VA examination noted that the Veteran's memory impairment and occasionally inappropriate social interaction could be due to both his PTSD and his TBI, and the examiner was unable to distinguish which disability was a major factor in causing the memory impairment or rule out a contribution from both diagnoses for the occasionally inappropriate social interaction. As such, the memory impairment and social interaction cannot be clearly separated from the Veteran's PTSD, and a single evaluation must be provided. The Veteran must be provided a rating under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. Diagnostic Code 8045 provides that a 2 should be assigned for the Veteran's objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; and a 1 should be assigned for his occasionally inappropriate social interaction. The December 2018 evaluation also indicates that only a 0 should be assigned for the Veteran's normal judgement, noted level of orientation, normal motor activity, normal spatial orientation, and absence of neurobehavioral effects. In addition, the Veteran's level of consciousness was found to be normal. While the Board acknowledges that the December 2018 VA examiner indicated that the Veteran's subjective headaches were attributable to his TBI, the Veteran is already in receipt of a separate noncompensable for post-traumatic headaches effective from November 9, 2018, and the evaluation of this disability is not currently on appeal. The examiner also did not indicate that the Veteran had any other current residuals of a TBI, to include a visual impairment. As such, the severity of these symptoms would warrant no more than a 40 percent rating under Diagnostic Code 8045. As discussed below, the Board finds that the Veteran is entitled to a 70 disability rating under the criteria of Diagnostic Code 9411 for the entire period on appeal. The 70 percent rating assigned under the PTSD rating criteria is consequently the higher rating, and the Board will evaluate the PTSD with major depressive disorder and residuals of TBI together under Diagnostic Code 9411 as it allows the better assessment of overall impaired functioning due to both conditions. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1). For the entire period on appeal, the record supports that the Veteran has experienced symptoms that more nearly approximate the impaired impulse control (such as unprovoked irritability with periods of violence) that is contemplated by a 70 percent rating. Dr. M. indicated in the March 2015 letter that the Veteran had sought treatment for issues that included extreme anger as early as the fall of 2013, and P.D. similarly reported that the Veteran was erupting into fits of rage in November 2013. The Veteran's wife also reported in March 2015 that she initially sought counseling with the Veteran in part due to his anger and her occasional concerns for her safety living with him. However, she noted that the Veteran was still moody and irritable at the time of the statement; and she felt the need to walk on eggshells around him as she did not know "what might set him off." The Veteran reported in his June 2015 notice of disagreement that he continued to struggle with his PTSD symptoms and indicated that he became extremely angry towards his family following his retirement from the military. He also reported currently receiving treatment for anger and hostility towards others in his September 2015 VA Form 9. The December 2018 VA examination specific to PTSD noted that the Veteran continued to experience irritability as part of moderate depression symptoms that occurred once a week. While the Veteran indicated that he was better able to control his irritability when compared to the past during the December 2018 VA examination related to the TBI residuals, he nevertheless attributed his current divorce to this issue. Other symptoms associated with the 70 percent rating criteria have also been demonstrated at different points during the appeal period. Difficulty in adapting to stressful circumstances, including work or a worklike setting, was noted during the May 2015 VA examination. The Veteran also indicated that he had a relatively recent history of suicidal ideation in his June 2015 notice of disagreement, and he reported having thoughts of suicide in his September 2015 VA Form 9. The Veteran displayed some, but not all, of the symptoms listed as examples under the 70 percent rating criteria. Resolving all doubt in favor of the Veteran, the Board finds that the overall level of impairment during this period is best reflected by a disability rating of 70 percent from November 26, 2014. 38 U.S.C. § 5107(b). However, the Board finds that a disability rating higher than 70 percent is not warranted. As noted above, a 100 percent rating requires total social and occupational 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. First, the evidence throughout the period on appeal, without even considering occupational impairment, does not demonstrate total social impairment. At the time of the May 2015 VA examination, the Veteran described his marriage and stable, he reported having occasional contact with a sister, and he had friends with whom he socialized "off and on." Although the December 2018 VA examinations noted that the Veteran later became separated from his wife in January 2018 before ultimately becoming divorced, the Veteran continued to see his children every other weekend. The December 2018 VA examiner also reported that the Veteran had friends who served as a primary social support. He additionally maintained weekly contact with his father and intermittent contact with his sister. In May 2020, the Veteran reported he was working on maintaining a good relationship with his sons. The evidence indicates significant impairment in social functioning, but not a total impairment. Furthermore, the Veteran's symptoms are not of the severity or frequency to warrant a 100 percent evaluation. The record has not suggested that the Veteran experiences delusions or hallucinations. The Veteran's speech was repeatedly noted to be normal during the appeal period, and the December 2018 VA examination for TBI residuals indicated that there was no impairment in the Veteran's ability to communicate. The December 2018 VA examiner who completed the PTSD examination also did not mark the available choice to report that the Veteran had gross impairment in thought processes or communication. The Veteran was frequently noted to have an appropriate affect in addition to being pleasant and cooperative during the appeal period, and the December 2018 VA examination for TBI residuals found that the Veteran's social interaction was no more than occasionally inappropriate. These findings are not suggestive of grossly inappropriate behavior. In addition, the Veteran was consistently noted to be well-groomed or described as having good hygiene. While the Veteran's wife reported that he experienced a complete breakdown approximately one year before her March 2015 statement, the record does not suggest that he experienced an intermittent inability to perform activities of daily living during the current appeal period beginning in November 2014. Only mild memory loss was noted during the May 2015 VA examination and December 2018 TBI residuals examination with neither examiner suggesting that he had memory loss for names of close relatives, or for the Veteran's own occupation or name. In addition, the Veteran was found to be fully oriented to time and place throughout the appeal period, including during the December 2018 TBI residuals examination. The Board has also considered the Veteran's issues with irritability and anger, his reported history of suicidal ideation in the June 2015 notice of disagreement, and his statement in the September 2015 VA Form 9 indicating he had had current suicidal ideation. However, the record does not establish that he was in persistent danger of hurting himself or others. T.G., DO, noted in the May 2018 letter that the Veteran had not demonstrated any history of suicidal or homicidal ideations, and there was nothing in his record that indicated he had a history of violence or threats towards himself or others. The Veteran also denied having current suicidal or homicidal ideation during the December 2018 VA examination, and the examiner did not believe that the Veteran should be considered a current imminent or increased risk for suicide. The Veteran later had a negative screen for suicide in May 2019 and May 2020. Moreover, as noted above, there is not total social impairment, despite significant effects on social functioning. The Board therefore finds that the rating criteria for the next higher 100 percent disability evaluation have not been met at any point during the period on appeal. As the preponderance of the evidence is against awarding any rating higher than the 70 percent rating awarded herein, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For entire claims period, the Board has also considered Diagnostic Code 8045's instruction to consider whether the Veteran is entitled to SMC. The Board notes that SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). However, the record does not show that the Veteran currently has a single service-connected disability that is rated as 100 percent disabling. The record also fails to reflect that the Veteran is permanently housebound by reason of any of his service-connected disabilities. The Board has also considered whether the Veteran is entitled to SMC compensation under any other provision, to include 38 U.S.C. § 1114(k), but finds that he is not. Neither the Veteran nor the record suggests the need for aid or attendance, significant sensory impairments, loss of use of an extremity, or erectile dysfunction as a result of his TBI. Accordingly, the record does not indicate that SMC is warranted at this time. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Board notes that the Veteran has not yet completed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Board acknowledges that the AOJ previously sent the Veteran a December 2015 letter requesting that he complete and return this form if he believed that he qualified for a TDIU. However, a December 2018 VA examination indicates that the Veteran later obtained a full-time employment position before he submitted the recent April 2019 statement that raised the issue of entitlement to a TDIU. As the Board lacks sufficient information to determine whether the Veteran is still working or if any current employment may be considered substantially gainful, the Board finds that the Veteran should be provided with another opportunity to return this form on remand. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment related to his claim for a TDIU. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include any treatment records dated since June 2020. 2. Provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability), and a VA Form 21-4192 (Request for Employment Information with Claim for Disability Benefits), and ask him to complete and return these forms. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.