Citation Nr: 21075899 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-54 421 DATE: December 21, 2021 ORDER For the period prior to October 12, 2021, entitlement to a 70 percent rating for residuals of traumatic brain injury (TBI) with depressive disorder is granted. Entitlement to a rating in excess of 70 percent for residuals of a TBI with depressive disorder is denied. Entitlement to a rating in excess of 50 percent for migraine headaches is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted for the period prior to July 14, 2015. Entitlement to an effective date of June 9, 2013, for the grant of Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35, is granted. FINDINGS OF FACT 1. The Veteran's TBI with depressive disorder has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but has not resulted in total occupational and social impairment. 2. The Veteran's migraine headaches are characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation prior to July 14, 2015. 4. The Veteran was discharged from service under conditions other than dishonorable and the Veteran has a permanent total service-connected disability as of June 9, 2013. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating, but no higher, for TBI with depressive disorder, have been met for the entire period on appeal. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. 2. The criteria for a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 3. The criteria for entitlement to a TDIU for the period prior to July 14, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 4. The criteria for entitlement to an award of DEA benefits under 38 U.S.C. Chapter 35, effective June 9, 2013, but no earlier, have been met. 38 U.S.C. §§ 3501, 3510, 5110; 38 C.F.R. §§ 3.807(a), 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In a May 2021 rating decision, the AOJ granted service connection for depressive disorder, effective July 14, 2015, and assigned a 50 percent evaluation for TBI with depressive disorder and granted a 50 percent rating for headaches. When the Veteran disagreed with the amount of compensation awarded for residuals of a TBI, he did not limit his appeal to one manifestation, but rather was seeking the highest rating or ratings available for disability due to his service connected TBI. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, regulation provides that VA is to evaluate any physical dysfunction associated with TBI under an appropriate diagnostic code. 38 C.F.R. § 4.124a, Diagnostic Code 8045. For these reasons, the Board concludes that when the Veteran appealed the rating assigned for TBI, his appeal encompassed the rating for depressive disorder and migraine headaches. Therefore, the issues before the Board includes the ratings for TBI, depressive disorder, and headaches back to June 9, 2013. The Board most recently remanded this appeal in August 2021. The remand order noted that the Veteran's most recent TBI examination was not completed by a board-certified physiatrist, psychiatrist, neurosurgeon, or neurologist and remanded for a new TBI examination by one of these medical professionals. The remand order also asked for an acquired psychiatric disorder examination with a VA psychiatrist. The September 2021 TBI examination was performed by a physiatrist and the mental disability examination was performed by a doctor of psychology. While the Board notes that the mental disability was not performed by a psychiatrist, it was performed by a qualified medical professional, and therefore, there was substantial compliance with the Board remand. Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an increased rating for TBI and depressive disorder At the onset, the Board notes that the Veteran has been diagnosed with both a TBI and residuals and depressive disorder. When there is a diagnosis of TBI residuals and a mental disorder, and the symptoms for each disorder can be attributed to either the mental disorder or the TBI, the Board will evaluate emotional/behavioral dysfunction separately under 38 C.F.R. § 4.130. However, if the symptoms associated with the mental disorder and TBI overlap and cannot be clearly distinguished, the Board will evaluate the disabilities under both the TBI and General Rating Formula for Mental Disorders criteria and will assign the Veteran a rating under the diagnostic code that gives the highest benefit to the Veteran. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1). In August 2021, the Board remanded this appeal for a VA examiner to determine which of the Veteran's symptoms were attributable to his mental impairment or his TBI. The October 2021 examiner found that the Veteran's symptoms for TBI and mental impairment overlap, and therefore he was unable to determine their individual impact. None of the VA examiners provided an opinion differentiating the Veteran's symptoms of his mental impairment and TBI. As there is no evidence of record differentiating these symptoms, the Board will evaluate the Veteran's TBI with depressive disorder under both 38 C.F.R. § 4.124a, Diagnostic Code 8045, and 38 C.F.R. § 4.130, Diagnostic Code 9434, and assign the highest rating available. As detailed below, the Veteran is entitled to the higher rating under the General Rating Formula for Mental Disorders, and as such, this is what his disability is evaluated under. The Veteran's TBI is currently rated as 10 percent disabling from June 9, 2013 to July 13, 2015, 50 percent disabling combined with depressive disorder beginning July 14, 2015, and 70 percent disabling combined with depressive disorder beginning October 12, 2021. The Board finds the preponderance of the evidence supports finding that the Veteran is entitled to a rating of 70 percent for the entire period on appeal for his TBI with depressive disorder. As noted above, because the symptoms of TBI and depressive disorder cannot be separated, the Board will evaluate the impairments under both diagnostic codes. The Board will first discuss the evaluation of the impairments under Diagnostic Code 9434, as this is most favorable to the Veteran. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 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, 114-118 (Fed. Cir. 2013). The Veteran's TBI with depressive disorder has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but has not resulted in total occupational or social impairment. Therefore, the Veteran is entitled to a 70 percent rating for the period on appeal. The Veteran attended an October 2021 VA examination. As noted above, the examiner found that the symptoms of the Veteran's TBI and depressive disorder overlap, and their individual impact could not be determined. The examiner noted symptoms of depressed mood, near continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran denied suicide attempts, but stated "There was one night I did an excessive amount of meth and I could almost hear my heart. I didn't care. That's probably as close as I've come." The Veteran lives alone and stated he is in a "sorta, kinda" romantic relationship, but does not have any friends he maintains contact with. The examiner found the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran attended a February 2020 VA examination. The examiner noted symptoms of depressed mood, anxiety, mild memory loss, flattened affect, and disturbances of motivations and mood. The examiner stated that the Veteran's reported symptoms would interfere with his ability to work collaboratively, and his symptoms would also reduce the efficiency of his work. The Veteran reported he had a positive relationship with three sons from a previous marriage and was currently in a relationship. The examiner found the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran attended a January 2016 VA examination. The examiner identified symptoms of chronic sleep impairment, mild memory loss, impairment of short and long-term memory, difficulty understanding complex commands, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and intermittent inability to perform activities of daily living. The Veteran reported a close relationship with his sibling, girlfriend, and his oldest son, but he reported he did not have a good relationship or much of a relationship with his other two sons. The examiner found the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Veteran submitted an annotated copy of the VA examination indicating additional symptoms of memory loss of name of close relative, occupation, or name, flattened affect, persistent delusions and hallucinations, neglect of personal appearance, and disorientation to time and place. The Veteran attended an October 2015 VA examination. The examiner identified symptoms of depressed mood, chronic sleep impairment, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner found the Veteran had occupational and social impairment due to mild or transient symptoms. However, the Veteran submitted an annotated copy of the examination, where he indicated that he had more symptoms than recorded in the examination. His annotations indicated mild memory loss, impairment of short and long-term memory, impaired judgement, grossly inappropriate behavior, and intermittent inability to perform activities of daily living. He also stated he was not competent to handle his financial affairs. A May 2021 VA mental health record indicated the Veteran reported he had been struggling with depression increasingly for the past several years. He described low mood, sleep disturbances, and feeling overwhelmed. He denied suicidal ideation but described occasional morbid ruminations, and stated he was not a social person. In December 2017, the Veteran underwent a social work assessment for transplant candidate at a VA Medical Center. The Veteran reported difficulty concentrating, low mood, difficulty holding down jobs, and dealing with authority. He reported that he lives alone and mostly stays in his room. He denied current suicidal ideation, but reported thoughts of death and dying a few times a year. The Veteran's VA medical records show cognitive behavioral therapy for depression in 2016 and 2017. While the severity of the Veteran's symptoms have fluctuated during the period on appeal, the evidence of record shows that the Veteran's TBI with depressive disorder has most closely approximated the criteria for the 70 percent rating during the entire period on appeal. The Veteran has exhibited occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as a result of symptoms including depressed mood, memory loss, sleep disturbances, and thoughts of death and dying. While the October 2021 examination showed the most severe symptoms and level of impairment, the Veteran has consistently contended throughout the period on appeal that his symptoms were more severe than those reported on his 2015 and 2016 VA examinations. The Veteran's medical records show consistent reports of, and treatment for, his depressive disorder, and as noted above he reported thoughts of death and dying a few times a year in 2017. Therefore, according the Veteran the benefit of the doubt, the Board finds that the Veteran's symptoms most closely approximate the 70 percent criteria for the entire period on appeal, beginning June 9, 2013. A higher rating of 100 percent is not warranted, as the Veteran did not have symptoms or overall impairment more closely approximating the criteria for a 100 percent rating. The evidence of record indicates the Veteran has had romantic relationships and has maintained relationships with some members of his family. As such, he does not have total social impairment. While the Veteran has not worked during the period on appeal, as discussed in the section below, his occupational impairment is due to both his physical and mental disabilities. While limited, the Veteran has consistently reported some level of social interaction throughout the period on appeal, and therefore he does not meet the overall impairment required for the 100 percent rating. The Board now turns to whether the Veteran would be entitled to a rating higher than 70 percent if evaluated under Diagnostic Code 8045. Diagnostic Code 8045 provides that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Therefore, for the Veteran to be entitled to a rating in excess of 70 percent under Diagnostic Code 8045, he would have to have "total" impairment in one of the facets. In looking at all of the Veteran's TBI examinations, the highest rated facet is a 2, which would only entitle the Veteran to a 40 percent rating. Therefore, it is more favorable to evaluate the Veteran's TBI with depressive disorder under the General Rating Formula for Mental Disorders. The Veteran attended a TBI examination in September 2021. The examiner found complaints of mild memory loss, but no memory loss on objective testing, normal judgement, occasionally inappropriate social interaction, occasional disorientation to one of the four aspects, normal motor activity, mildly impaired spatial orientation, subjective symptoms that do not interfere with work, one or more neurobehavioral effects that do not interfere with workplace or social interaction, the ability to communicate with spoken language, and normal consciousness. These correspond to no more than a level 1 in any of the facets. The Veteran attended a TBI examination in February 2021. The examiner found objective testing of mild impairment of memory, normal judgement, occasionally inappropriate social interaction, always oriented, normal motor activity, normal spatial orientation, three or more subjective symptoms that moderately interfere with work, no neurobehavioral effects, ability to communicate with spoken and written language, and normal consciousness. These findings correspond to no more than a level 2 in any of the facets. The Veteran attended a TBI examination in December 2015. The examiner found complaints of mild memory loss, mildly impaired judgment, occasionally inappropriate social interaction, always oriented, motor activity normal most of the time, but mildly slowed at times, normal spatial orientation, subjective symptoms that do not interfere with work, one or more neurobehavioral effects that do not interfere with workplace interaction, ability to communicate by spoken and written language, and normal consciousness. These findings correspond to no more than a level 1 in any of the facets. Accordingly, evaluating the Veteran's TBI and depressive disorder would result in a rating of no greater than 40 percent under Diagnostic Code 8045. As a higher rating is warranted under the General Rating Formula for Mental Disorders, the Veteran will be rated under Diagnostic Code 9434. The Board has also considered the direction under Diagnostic Code 8045 to consider whether special monthly compensation (SMC) is warranted. The treatment records and examination reports relevant to the current claim and appeal do not show that the Veteran is in need of regular aid and attendance of another person, and is not housebound. The Board has also considered SMC under 38 U.S.C. § 1114(s). The Veteran has been granted a TDIU beginning June 9, 2013, in this decision. A TDIU based on a single service-connected disability, when the Veteran also has an additional service-connected disability independently ratable at 60 percent, may result in additional benefits, such as SMC, even if a 100 percent combined schedular evaluation is in effect. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the Veteran's TDIU was not based on a single service-connected disability. The TDIU was granted based on his service-connected residuals of a TBI, depressive disorder, and headaches, as discussed in detail below. As such, the evidence does not support finding that the Veteran's TDIU is warranted on a single service-connected disability. Accordingly, SMC is not applicable. Therefore, providing the Veteran the benefit of the doubt, the evidence supports a rating of 70 percent, but no higher, for the Veteran's TBI with depressive disorder for the entire period on appeal under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. 2. Entitlement to a rating in excess of 50 percent for migraine headaches. The Veteran's migraine headaches are currently evaluated at 50 percent disabling for the entire period at issue. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A rating of 50 percent is the highest schedular rating available for migraine headaches. The Veteran has not made any extraschedular arguments. Therefore, as the Veteran's migraine headaches have been assigned the maximum schedular rating throughout the period on appeal, entitlement to a rating in excess of 50 percent is denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a TDIU for the period prior to July 14, 2015. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall 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. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: TBI with depressive disorder (rated 70 percent beginning June 9, 2013); migraine headaches (rated 50 percent beginning June 9, 2013); tinnitus (rated 10 percent beginning June 9, 2013); scar on the scalp (rated 10 percent beginning June 9, 2013); and bilateral hearing loss (rated noncompensable beginning June 9, 2013). Therefore, the schedular criteria have been met for the entire period on appeal and the remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. On the August 2021 application for a TDIU, the Veteran reported that he became too disabled to work as of June 2006 due to his migraine headaches, TBI, and depression. As TDIU has been raised as part and parcel to the underlying TBI claim, the period on appeal for the TDIU extends back as far as the period on appeal for the underlying TBI claim; June 9, 2013. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU has already been granted as of July 14, 2015, so therefore the question before the Board is whether the Veteran is entitled to a TDIU for the period of June 9, 2013, through July 14, 2015. The Veteran reported he last worked as a heavy equipment mechanic. He reported that he completed only his freshman year of college. The Veteran submitted a September 2016 neurological evaluation from R.C., M.D. The doctor found that the Veteran had back pain, short term memory loss, and headaches at weekly intervals since his concussion in 1963. The doctor found that the Veteran has considerable disability and possibly has total and permanent disability for any type of job as a result of his injury in service. Of note, the doctor considered the Veteran's nonservice-connected back impairment in rendering this opinion, but the opinion is still probative as to the impact of the Veteran's service connected disabilities. An October 2015 VA examination for migraine headaches indicated the Veteran reported constant, pulsating or throbbing pain on both side of the head, along with sensitivity to light and sound. The examiner found the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain that would impact his ability to work as the Veteran must lay down in a quiet room and cannot do anything when he has a severe headache. As discussed above, the Veteran attended an October 2015 VA examination. The examiner identified symptoms of depressed mood, chronic sleep impairment, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. In addition, the Veteran submitted an annotated copy of the examination, where he indicated that he had more symptoms than recorded in the examination which included mild memory loss, impairment of short and long-term memory, impaired judgement, grossly inappropriate behavior, and intermittent inability to perform activities of daily living. He also stated he was not competent to handle his financial affairs. An April 2020 VA examination for migraine headaches indicated that the Veteran reported headaches with nausea, vomiting, and sensitivity to light and sound. The examiner found that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic impairment. An October 2021 VA examiner found the Veteran had significant occupational limitations related to his TBI, to include difficulty attending to or easily distracted from tasks, difficulty maintaining concentration, difficulty remember instructions, significant difficulty working around others, difficulty sustaining energy, and other mental health problems that interfere significantly with his work. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical and mental effects of his TBI, depressive disorder, and headaches. These service-connected disabilities impair the Veteran's concentration, memory, and ability to work around others. This limits the Veteran's ability to perform even unskilled jobs. In addition, the Veteran's migraine headaches would cause the Veteran to miss work due to prostrating attacks. These limitations would substantially erode the Veteran's occupational base to the point where he would be unable to secure and follow a substantially gainful occupation. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The examinations discussed above do not provide a date at which the Veteran's service-connected disabilities cause this level of impairment. Some of the Veteran's earlier VA examinations showed less occupational impairment than detailed above. However, as noted above in the discussion of entitlement to an increased rating for TBI and depressive disorder, the Veteran has consistently complained of more severe symptoms than originally documented by the VA examiners. These symptoms include memory impairment, impaired judgement, grossly inappropriate behavior, and intermittent inability to perform activities of daily living. As such, according the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a TDIU during the entire period on appeal, beginning June 9, 2013. 38 U.S.C. § 5107(b), 38 C.F.R. §§ 3.102. 4. Entitlement to an effective date prior to June 14, 2015, for the grant of DEA benefits. For the purposes of educational assistance for dependents under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. As a result of the Board's TDIU determination, herein, the Veteran has a total disability rating effective from June 9, 2013. Thus, the general criteria for Chapter 35 eligibility are met from June 9, 2013, and entitlement to an earlier effective date for DEA benefits is granted. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.