Citation Nr: 21013235 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-08 820 DATE: March 9, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for traumatic brain injury (TBI) and anxiety disorder, not otherwise specified (NOS), is denied. Entitlement to a total disability evaluation based on upon individual unemployability (TDIU) is denied. FINDINGS OF FACTS 1. The Veteran’s overall psychiatric symptoms result in occupational and social impairment with reduced reliability and productivity due to symptoms such as occasional panic attacks, impaired abstract thinking, depressed feelings, and chronic sleep impairment; his TBI symptoms have not exceeded a level 2 impairment. 2. The Veteran’s service-connected disabilities do not render him unable to obtain and/or secure substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for higher initial rating in excess of 50 percent for TBI and anxiety disorder, NOS, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 8045, 9413. 2. The criteria for TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to November 1988, from September 1990 to May 1991, and from June 1991 to July 2011. This matter is on appeal from an April 2012 rating decision and was most recently remanded by the Board in September 2019 and in June 2020. The Veteran and his wife testified before a Veterans Law Judge at an August 2014 Board hearing. During the period on appeal, the Veterans Law Judge that conducted the August 2014 hearing retired. In November 2020, VA sent a letter to the Veteran informing the Veteran and asking whether he wanted a new hearing. The Veteran was given 30 days to respond and request a new hearing if he so desired. As of date, the 30 days allowance has lapsed, and VA has not received any response from the Veteran. Therefore, the Board will proceed with a decision on the appeal. Procedurally, the Board initially denied the Veteran’s claim in a July 2017 decision. The Veteran appealed that decision to the United States Court of Appeal for Veterans Claims (Court). Subsequently, a Joint Motion for Remand (JMR) was filed in July 2018, asserting that the Board’s analysis was not consistent with the Court’s recent decision in Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). The Board erred when it used GAF scores to assign a psychiatric rating in the instant case, where the DSM-5 applies. The Court ultimately vacated the July 2017 Board decision in an August 2018 Order, and remanded the matter for development consistent with the July 2018 JMR. When it came to the Board in June 2020, the matters were remanded to afford the Veteran a new VA examination and for development of his TDIU claim. The Board notes that in August 2018, the Veteran elected to participate in the Rapids Appeals Modernization Program (RAMP). However, at the time of his election, his appeal had already been activated by the Board, and therefore was not eligible for RAMP processing. Entitlement to an initial rating in excess of 50 percent for traumatic brain injury (TBI) and anxiety disorder, not otherwise specified (NOS). The issue before the Board is whether the Veteran’s service connected TBI and anxiety disorder warrants an initial rating higher than 50 percent. By way of history, the Veteran was initially granted service connection for an anxiety disorder and was assigned a 30 percent rating, effective August 1, 2011 by an April 2012 rating decision. It was increased to 50 percent effective August 1, 2011, by a February 2014 rating decision. He was later awarded service connection for traumatic brain injury by a June 2018 rating decision, effective March 26, 2018. The AOJ found that the Veteran’s TBI was intertwined with his service-connected anxiety disorder and rated them in combination. Given that the Veteran’s conditions share common symptoms, making the differentiation of symptoms and impairment impossible, his condition has been rated under Diagnostic Code 8045-9413. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional Diagnostic Code, shown after the hyphen, represents the basis for the rating, while the primary Diagnostic Code indicates the underlying source of the disability. Thus, essentially, the RO assigned the current 50 percent rating for TBI and anxiety disorder NOS based on the Veteran’s acquired psychiatric disorder symptoms, specifically anxiety, insomnia and memory impairment, that have also been attributed to the TBI, and used a hyphenated Diagnostic Code to evaluate the condition. To allow for both separate ratings and a combined rating under DC 8045 for the same symptoms would amount to pyramiding, or the process of rating the same disability under multiple DCs, which is to be avoided. See 38 C.F.R. § 4.14. The Board, therefore, will now consider evidence to determine which diagnostic code offers a higher rating. First, under Diagnostic Code 9413, a 50 percent disability rating is assigned where a psychiatric disability causes 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. A 70 percent disability rating is assigned where a psychiatric disability causes 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; 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 work-like setting); and inability to establish and maintain effective relationships. The maximum schedular disability rating of 100 percent is assigned where a psychiatric disability causes 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, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-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. 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 that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Second, as the Veteran was granted service connection for TBI, the Board will also evaluate the criteria under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. TBI is rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Under DC 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In each individual, symptoms may fluctuate in severity from day to day. Adjudicators are to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, they are to separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Adjudicators are to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Adjudicators are to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate DC: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, adjudicators are to evaluate under the most appropriate DC. Adjudicators are to evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than total, because any level of impaired consciousness would be totally disabling. Adjudicators are to assign a 100 percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” adjudicators are to assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 38 C.F.R. § 4.124 (a); DC 8045. There are 4 relevant notes to DC 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 TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another DC. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 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 an 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” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. Based on the Veteran’s September 2011 VA examination, he reported that he had not been working. While he had been experiencing some emotional difficulties, he still maintained a relationship with his friends. He reported having nightmares, depressed mood, chronic sleep impairment, and mild memory loss. He gets startled easily and would rather avoid conflicts. He stated that his mood is reserved and denied having excessive worry or anxiety. His motivation and energy levels during the day is good and he denies a loss of pleasure in day to day activities. The Veteran noticed problems with concentration, which affects his ability to stay focused in school. Overall, the examiner found that the Veteran’s symptoms were productive of occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks during periods of significant stress. In October 2011, VA treatment notes indicated that the Veteran continued to struggle with nightmares. He maintained his desire to avoid conflict but reported having some trouble focusing in school. He told the physician that his primary concern was memory loss and concentration issues. He denied any other significant mental health problems. By April 2012, the Veteran reported being on constant guard, avoiding crowds and socialization. He complained of depressed feelings and irritability. He underwent a private mental evaluation in June 2012. There, the private physician noted that the Veteran was neatly dressed and cleanly shaven. He was fully cooperative during the two-hour interview and psychological testing. He communicated effectively, was not defensive and maintained good eye contact with the physician. He told the physician that he stopped doing any social activity unless encouraged by his girlfriend. Throughout the examination, the Veteran was oriented to person, place, and time. He also indicated that he feels tired and has poor appetite several days out of the week. He even has thoughts that he would be better off dead or hurting himself. Upon further testing, the physician found that the Veteran was unable to demonstrate abstract thinking abilities. He had difficulty trying to understand simple directions to count forward by serial threes, and finally after several tries, he was able to slowly count forward but with least one error. He clearly demonstrated severe attention and concentration problems with short term memory issues. When asked about hallucinations, he stated that sometimes he can smell something like a burnt smell. He denied other symptoms of a thought disorder but admitted to being highly suspicious of others. In an April 2013 statement, the Veteran indicated that he suffered from panic attacks 2 to 3 times weekly and has had to withdraw and isolate himself from relationships in order to avoid triggering additional panic attacks. The Veteran stated he is completely dependent on his girlfriend to make decisions for him; even routine decisions such as buying clothes are not possible without her assistance. In a June 2013 VA examination, it was noted that the Veteran had a remote history of mild concussion that was likely recovered. The Veteran told the examiner that he had several head injuries while in service. First, in 2004 when he was parachuted in Hawaii. Second, when he participated in a commemorative 9/11 helicopter repel event. The examiner indicated that based on the Veteran’s complaints his condition does not appear to support a definite immediate post-concussive symptoms associated with individual traumas. Rather, his current complaints appear to have an insidious onset over the course of his combat tour, which worsened after returning home. His cognitive concerns began 2 years prior. A physician examination revealed normal neurological results and that his ongoing complaints of symptoms appear multifactorial in nature, not likely representative of late effects of traumatic brain injury or post-concussive syndrome. Etiological considerations include insomnia, features of depression, and anxiety, as well as a history of drug abuse. The Veteran submitted another private mental evaluation in July 2013. The physician noted that the Veteran appeared casually dressed and was clean shaven. He appeared to be in excellent physical condition and younger than his staged age. He was fully cooperative during the interview and psychological testing. He maintained good eye contact throughout the interview and his affect was also appropriate. He was oriented to time, place, and person. Similar to his June 2012 reported status, the Veteran continued to be somewhat obsessive-compulsive, making sure his house is locked up and often talks to his girlfriend about safety conscious issues. He reported increased depression and anxiety. He continued to live with his girlfriend and was active with the Wounded Warriors Program, which met monthly for functions. The Veteran also recently took a trip to Chicago with other veterans and felt comfortable on the trip. Overall, he endorsed symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short term memory loss, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of mood and motivation, difficulty in establishing and it and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, impaired impulse control, and suicidal ideations. In conclusion, the private physician submitted a July 2013 DBQ finding that in addition to anxiety disorder, the Veteran also suffers from PTSD and a major depressive disorder. The Veteran told the examiner that he had to quit his job as a prison guard and drop out of college due to attention and concentration problems. The diagnoses of major depressive disorder and PTSD, however, have not been found by other evaluations, nor has the reported PTSD been verified. Regardless, the private physician found that the Veteran’s symptoms result in occupational and social impairment with deficiencies in most areas. The Veteran was provided with a new VA examination in September 2013. He was adequately dressed and groomed. He was alert, well oriented, logical with coherent thought and speech process. He indicated that he was a full-time student studying pre-law but was struggling due to his short attention span. He reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective social relationships, difficulty in adapting to stressful circumstances, irritability, with intrusive thoughts about his military experiences. His energy level was quite low. He described hypervigilance, particularly at night, but denied recurrent panic attacks. He indicated that his memory loss is so severe that he has missed a lot of appointments and must write everything down. The examiner found that the Veteran’s symptoms produce occupational and social impairment with occasional decrease in work efficiency, and intermittent period of inability to perform occupational tasks, though general functioning satisfactorily, with normal routine behavior, self-care and conversation. He denied any suicidal thoughts and did not exhibit any delusions or hallucinations. Pursuant to the September 2013 VA examination, the Veteran was assigned a 50 percent disability rating, effective April 1, 2011. However, in a May 2015 Board remand, the Board found that the September 2013 VA examination was inadequate in the sense that it failed to consider the Veteran’s additional diagnoses of PTSD and major depressive disorder documented by the July 2013 private DBQ and by an October 2011 VA treatment record. At his August 2014 Board hearing, the Veteran testified that he had always been on the alert and is very irritable. He is easily angered and often argued with his previous representative. He no longer trusts people and lost many friends. While he still maintains a relationship with his family other than his wife, he only calls them on the phone about twice a month. His wife also testified that their social life has deteriorated. He does not sit with his back to the door at restaurants and prefers to stay home. VA treatment records in early August 2015 showed that the Veteran underwent an MMPI2 (a multiphasic personality test). However, the examining physician found that while the Veteran responded to the test in a careful and consistent manner, he endorsed an abnormally high number of both psychological and cognitive symptoms to the level that even the most severely mentally impaired individuals would not endorse. His physician found that since the Veteran did not respond to the test in a credible manner, the results were not valid for interpretation. The Veteran was afforded a new VA examination in August 2015 pursuant to May 2015 remand directives, which required the examiner to address the additional psychiatric diagnoses. Despite a diagnosis by the Veteran’s private physician, the August 2015 VA examiner found that the Veteran did not have PTSD or a major depressive disorder. The Veteran had appeared alert and oriented during his evaluation. His grooming and dressing were appropriate. He maintained good eye contact and demonstrated no apparent pain or distress, except for a brief moment when he became tearful, talking about his trauma. He was generally cooperative and exhibited adequate effort. He had good social skills with normal speech and thought content. His insight, however, was noted as poor. The Veteran admitted that he had been feeling on edge, often snapping at his wife. He reported having low energy during the day due to his chronic sleep problems. While he said that he felt good about his future, he reported some mild intermittent symptoms of depression, anxiety, with occasional panic attacks. Despite his statements describing his outburst towards his wife, he also indicated that he gets along with her very well but reported having no friends. The August 2015 VA examiner however, noted that the Veteran’s self-reporting was unreliable. His profile was invalid due to a non-credible pattern of responding. His MMPI2 test in September 2013 and August 2013 were minimally valid due to significant over-reporting. His treatment providers have noted that he has an unusual presentation in his self-reporting as he was often vague and inconsistent with his presentation. During the August 2015 examination, the Veteran exhibited some genuine distress when discussing his reported trauma, but otherwise he was calm and pleasant. He was inconsistent at times when talking about his social support system. Overall, the examiner found that the Veteran’s self-reporting was unreliable and therefore cannot support his additional diagnoses. The August 2015 VA examination was later found to be inadequate by the Board in October 2015 as the VA examiner failed to adequately address the Veteran’s diagnoses of PTSD and major depressive disorder as previously instructed by the Board in May 2015. A new examination was therefore scheduled in December 2015. There, the VA examiner found that the Veteran did not have a PTSD diagnosis that conforms to the current DSM-V criteria. Instead, the Veteran’s symptoms more likely endorsed symptoms of other specified trauma and stressor related disorder. Overall, the examining physician found that his symptoms, which include anxiety, chronic sleep impairment, and mild memory loss, resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress. The Veteran indicated that he currently lives with his wife and their relationship is great. He has no close friends and does not belong to any social groups. The Veteran appeared alert and oriented throughout his December 2015 examination. He was casually and appropriately dressed. His gait was adequate, and he did not appear to be in any physical distress. He maintained appropriate eye contact and his speech was normal in rate and volume. His responses were logical and coherent and relevant to the questions asked. He interacted politely and in a cooperative manner. His social skills and insight were also appropriate. His affect was constricted and in his own words, described his mood as a “struggle to get going.” He reported feeling protective of everything and often feels anxious. He often worries about safety and security around the house, especially with his wife. He endorsed feelings of hypervigilance. He continues to report chronic sleep troubles which causes low energy during the day. He also continues to complain of poor focus and attention which causes difficulty in completing tasks. He denied feelings of worthlessness and hopelessness, suicidal and homicidal ideations. The examiner concluded that aside from failing to meet the PTSD criteria, his current MMPI2 test, along with his previous ones are reflective of significant symptoms of over-endorsement. Therefore, it is likely that his anxiety is less severe than what he reported. His cognitive function, however, was not formally assessed. Based on another VA examination in February 2016, the Veteran was reevaluated again for other specified trauma and stressor related disorder. The examiner noted that symptomology that is attributable to the Veteran’s service-connected psychiatric condition include recurrent distressing dreams in which the content and/or effect of the dreams are related to the traumatic events, with hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance, mild anxiety mostly related to worry and lower stress tolerance. The service-connected condition consisting of these symptoms had previously been cited as anxiety disorder NOS. This was often the nomenclature for sub-clinical PTSD used under the DSM-IV as there was no other trauma or stressor related to diagnostic category other than PTSD, and PTSD at that time was listed as an anxiety disorder. However, as a result of DSM-V, the new diagnostic classification of trauma and stressor related to subclinical PTSD, is now known as ‘other trauma and stressor related disorder.’ Therefore, the diagnosis of ‘other-specific trauma’ is the same condition as anxiety. Second, there is no other disorder or diagnosis considered in which to attribute mental health symptoms based on the testing and interview data gathered from the February 2016 VA evaluation. Lastly, the adjustment disorder diagnosis was given at the initial mental health evaluation in 2011. This is a common diagnosis rendered as an initial diagnosis when not enough data gathered to make a more definitive diagnosis. Once DSM-V is used, the diagnosis was then changed from anxiety NOS to other trauma related disorder. In terms of his major depressive disorder, there is significant overlap between the symptoms of PTSD and depression. Upon review of the record, it appears as though the providers often attributed one symptom to both depression and PTSD, whereas the symptom of poor concentration, would better be defined as a trauma related symptom, as opposed to depression. As a result, it is more likely that the Veteran is not endorsing depressed mood, anhedonia, or other significant additional symptoms associated with depression. Thus, a separate clinical condition of major depression is not warranted in this case. In the past, the Veteran may have exhibited or reported some depression a secondary to his trauma related symptoms. However there does not appear to be enough standalone symptoms to warrant a separate diagnosis. Finally, in regard to his PTSD diagnosis, which was diagnosed in April 2012 by Dr. Myers, the February 2016 VA examiner found that the basis for which the diagnosis was made is unclear. The examiner notes that the Veteran was then again diagnosed with PTSD by Dr. W. in April 2012, based on the ‘PTSD symptoms scale interview.’ This instrument only acknowledges the presence of a symptom, and does not take into consideration, specifically, what each symptom is related to. Nor does it consider the overall severity of each symptom. This technique is no longer recognized under DSM-V. Thus, the Veteran’s current combination of symptoms is most likely ‘other specified trauma and stressor related disorder,’ which is considered specifically to be subclinical PTSD. Upon evaluation, the February 2016 examiner found that the Veteran’s symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. His symptoms include (mild and situational) anxiety, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. He also exhibited hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The Veteran was alert and oriented, although his cognitive functioning was not formally assessed. He was dressed casually and appropriately. His gait was adequate, and he did not appear to be in any physical distress while seat at the evaluation. He maintained eye contact and his speech was normal in rate and volume. His responses were logical and coherent and relevant to the questions asked. He was polite and cooperative. His affect was euthymic, and he describe his general mood as ‘watchful.’ He told the examiner that he is always alert and watchful regarding the security at his house. He exhibited suspicions with different people and told the examiner that he has difficulty establishing relationships at work. He has become very exhausted due to his watchful behavior and often feels depressed. He relies heavily on his wife as she often encourages him to venture out of the house. He complained of chronic sleep problems and tiredness during the day. He is easily awakened by noise at night and has a hard time falling asleep. The Veteran also complained of poor concentration and that he gets easily overwhelmed with many tasks but has not lost motivation. However, he has the attention span to complete tasks at work and around the house. He denies feelings of helplessness, worthlessness, and hopelessness. He also denies any thoughts of suicide or homicidal ideations. The Veteran underwent a VA psychiatric evaluation and management session in December 2016. There, he reported that his symptoms had been improving due to medication. However, he indicated that he has memory problems such as tying a necktie, names of people, and direction to places. He was alert and cooperative. He was dressed casually and was well groomed. His psychomotor and eye contact were normal. His speech was fluent. While his mood was ‘good,’ his affect was mildly anxious, and congruent with mood. His thought process was goal directed and his judgment was intact. He demonstrated no signs of suicidal or homicidal ideations, or psychosis. There was no evidence that he posed a threat to himself or others. In a January 2017 VA TBI consultation, he reported worsening problems with memory and concentration. He stated that he had stopped pursuing education due to cognitive difficulties. The VA physician noted slowed thinking, difficulty organizing and finishing projects and that neuropsychological testing was indicated to evaluate his cognitive issues. In a November 2017 VA speech pathology consult note, the Veteran was seen for cognitive and communication deficit. There, the Veteran reported that his language skills which include listening, speaking, reading, and writing, are more difficult than in the past. He sometimes does not understand what he hears, which he states may be related to his attention problem. He reported having significant difficulty with cognition which include attention, memory, and organization. He states that his cognitive skills are worsening, especially when he is easily distracted. Upon testing, the physician found that Veteran’s results were accurate and valid, which showed concerns with his ability to inhibit impulsive responses, sustain working memory, and organize problem solving approaches, and attend to task-oriented output. His ability to adjust to changes in routine or task demands, modulate emotions, monitor social behavior, initiate problem solving or activity, and organize environmental and materials is not considered problematic. It was noted that the Veteran had recently taken on a new job and is struggling to adjust to his new responsibilities. He reported changes in functional communication and cognitive skills in speaking, listening, reading, writing, attention, short term memory, and organization skills. Overall, he exhibits severe difficulty in everyday memory skills when compared to his peers. He underwent another speech pathology consultation in January 2018. There, the Veteran reported ongoing problems with verbal expression. He was particularly concerned with mispronunciation of words. He believes that his problem is brought on by stress in certain speaking situations, urgency to express idea before he cannot remember it, and when ideas flow quickly. With his new job, he has been struggling to adjust to his new responsibilities. He reports challenges with functional communication and cognitive skills in listening, reading, speaking, writing, attention, short term memory, and organization skills. Another consultation in February 2018 noted that the Veteran had been struggling with headaches that are severe in intensity. The pain interferes with his ability to focus and complete tasks. At times, the pain is so intense that it affects his ability to think. However, he also reported some improvement and was ready to be discharged from cognitive rehabilitation. At this point in his appeal, the Veteran filed a new service connection claim for TBI. He was afforded a VA evaluation to determine the etiology of his TBI. Pursuant to a May 2018 DBQ, the Veteran was granted service connection, effective March 26, 2018, the date of his claim. But as previously discussed, TBI is intertwined with his existing service-connected anxiety. Thus, the Veteran’s psychiatric claim was categorized as traumatic brain injury with anxiety disorder, not otherwise specified. In a May 2018 QTC evaluation for his TBI, conducted by Dr. P.S., the Veteran demonstrated objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions, resulting in mild functional impairment. This equates to a level 2 facet of impairment. The Veteran indicated that he has persistent difficulty with sustained focus, staying on tasks, and planning life activities. He relies heavily on his wife to set up a system for him to keep track of things. Because of this, he has trouble handling the demands of college and law school. His judgment, social interaction, motor activity, and consciousness were all normal. He was oriented to time, place, and situation. His visual spatial orientation was mild impaired, which equates to a level 1 facet of impairment. He reported three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living, or work, family or other close relationships. This equates to a level 2 facet of impairment. The Veteran indicated that he missed work because of headaches, with one episode lasting as long as 10 days, with symptoms such as insomnia, sensitivity to light and sound. The physician noted one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both. The Veteran specifically stated that he struggles with intermittent irritability (provoked by memory issues). He has communication issues, with comprehension and/or expression, which is occasionally impaired, especially with writing. Overall, the Veteran’s highest facet was of level 2. The Veteran underwent a cognitive screening for TBI in May 2018. The examiner administered the Montreal Cognitive Assessment (MoCA), a screening assessment for detecting cognitive impairment. MoCA scores range between 0 and 30. A score of 26 and over is normal. The Veteran scored 21, which shows cognitive impairment. The instructions to the provider with regard to assessment of cognitive impairment states that neuropsychological testing may be needed to complete “Section II of TBI DBQ,” under which the evaluator assesses 10 facets of TBI-related cognitive symptoms and subjective symptoms of TBI. The examiner stated that he did not have access to the Veteran’s records, and that based on the Veteran’s MoCA score of 21/30, formal neuropsychological assessment is “strongly indicated at this point.” However, the Board in September 2019 found that the MoCA screening report is of limited probative value because neurological testing was indicated, and not obtained, therefore the evidence may not accurately reflect the Veteran’s current functional status. Based on his May 2018 DBQ conducted by Dr. S.T., the Veteran’s TBI results in subjective complaints of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names, finding words, along with problems with attention, concentration or executive functions), but without objective evidence on testing. His judgment is normal, and his social interaction is considered ‘routinely appropriate.’ He was oriented to person, time, place, and situation. His motor activity and visual spatial orientation were normal. He did however, exhibited three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living or work, family or other close relationships. There was no issue with his communication, nor did he have any neurobehavioral effects or consciousness problem. Other additional residuals of his TBI was his headaches. Although the Veteran indicated worsening of his cognitive functioning, no neuropsychological testing was performed. As noted above, the instructions for completing Section II: Assessment of facets of TBI-related cognitive impairment and subjective symptoms of TBI state that neuropsychological testing may need to be performed in order to accurately complete the assessment if neuropsychological testing has been performed and does not accurately reflect the Veteran’s current functional status. The VA examination report indicates that the medical evidence the VA examiner reviewed in order to determine the Veteran’s current functional TBI status was the January 2017 TBI consultation performed by D.M., MD. As previously discussed, the January 2017 TBI consultation with D.M. MD indicates that neuropsychological testing was indicated, but not performed. The May 2018 VA examiner administered the Mini-Mental State exam (MMSE) and stated, that the score was “incompatible with the MoCA score discussed above. Further, he stated, without providing a rationale, that the Veteran’s MMSE score suggests that his abnormal MoCA screen score was affected by either poor effort or stress/depression. June 2019 VA treatment notes showed that the Veteran has been sleeping only 3 to 4 hours per night. He has significant nocturnal awakenings most nights and has daytime sleepiness, often nodding off in meetings at work. By July 2019, records showed that he had been missing his cognitive behavioral therapy. The Veteran was evaluated in August 2019. Based on his DBQ, the Veteran was diagnosed with insomnia disorder and other specified trauma and stressor related disorder. The examining physician indicated that while the Veteran has more than one mental disorder, the symptoms could not be differentiated. Although some symptoms can be distinguished for diagnostic purposes under the DSM-5 criteria, conditions and components interact, exacerbate and reinforce each other in complex ways. It is not possible to distinguish the portion of each symptom uniquely due to each condition because of that interaction without making an artificial distinction. However, the examining physician found that it was possible to differentiate which symptoms are attributable to TBI and any non-TBI mental health diagnosis. For example, symptoms of TBI are headaches and memory problems. Overall, the physician found that the Veteran’s psychiatric disorder produced occupational and social impairment with reduced reliability and productivity due to symptoms such as anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events. At the August 2019 DBQ, the Veteran was easily engaged, cooperative, and forthcoming throughout. His appearance, behavior, attitude, level of consciousness, orientation, insight, judgment, speech and language, thought process and content, attention span, memory, and intellectual functioning were all within normal limits. The Veteran convincingly denied suicidal or homicidal ideations or intent. His mood and affect were euthymic. He reported being a “happy” person and rated his current distress as a 3 out of 10. Furthermore, the Veteran is not shown to pose any threat or danger or injury to himself or others. No neurological testing was performed during the August 2019 evaluation. The subjective memory complaints reported by the Veteran were forgetting tasks at work, forgetting what he plans to do, going from one room to another, needing to write everything on “sticky notes.” While the Veteran reported significant short-term memory problems, a separate diagnosis for a memory condition is not warranted as memory loss is a symptom associated with TBI. When the matter came to the Board in September 2019, it was remanded since an additional VA examination was necessary to accurately determine the Veteran’s current functional status in order to accurately assess the facets of TBI-related cognitive impairment and subjective symptoms of TBI and anxiety disorder NOS. He was reevaluated again in October 2019. There, the examining physician confirmed the Veteran’s ‘unspecified anxiety disorder.’ He complained of memory problems, which causes stress for him at work. Sometimes, he even has trouble pronouncing words, which he finds embarrassing, especially in social settings. The examining physician found that the Veteran’s TBI symptoms include memory loss, attention, concentration, and executive functions and problems with visual spatial orientation, with communication issues. His current problems with social interaction and subjective symptoms were attributable to non-TBI mental health diagnosis. Overall, his condition results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. His symptoms include anxiety, suspiciousness, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran’s wife indicated that she has remind him of things he has to do. While he wants to join and participate in teams or religious groups, he is too anxious. The Board notes that the Veteran had requested a new evaluation to specifically address his TBI and anxiety disorder. However, he had missed that examination because he had forgotten about his appointment. While an examination was scheduled in November 2019, it was unclear at the time whether the Veteran attended the evaluation. Thus, the matter was remanded again in June 2020 so that the Veteran may be evaluated. The Veteran was ultimately evaluated in July 2020 for his TBI. The Veteran reported current symptoms of memory issues, dizziness, headaches, and frequent insomnia. Based on his DBQ, he demonstrated a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. This equates to a level 1 facet of impairment. His judgment, social interaction, orientation, motor activity, and visual spatial orientation were considered normal. He exhibited three or more subjective symptoms that mildly interfere with work, instrumental activities or daily living, or work, family or other close relationships, such as dizziness, headaches, and frequent insomnia. This equates to a level 1 facet of impairment. There were no neurobehavioral effects and his consciousness was normal. His communication skills, or expression (either by spoken language, written language, or both) is only occasionally impaired. This also equates to a level 1 facet of impairment. He did not have any residuals of any subjective symptoms or mental, physical, or neurological conditions attributable to TBI. In another July 2020 evaluation for his psychiatric disorder, which also acknowledged the Veteran’s TBI, the examining physician found that it was not possible to differentiate which symptoms are attributable to TBI and his non-TBI mental health diagnosis. His unspecified anxiety disorder and TBI share several symptoms and are inextricably linked making differentiation of symptoms and impairment impossible without resorting to mere speculation. The Veteran expressed concerns about his anxiety because of his fear of crowds, hypervigilance, difficulty concentrating, irritability, sleep problems, fatigue, social withdrawal, and severe trust issues. The Veteran appeared to his evaluation neatly dressed and well kempt. His speech was logical and goal oriented. He was cooperative with evaluation process and with answering questions. He was oriented to person, place, situation, and time. His concentration and attention were poor, but his judgment and insight were good. The Veteran described his mood as “anxious and irritable.” His appeared anxious throughout the evaluation. With symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, difficulty in understanding complex commands, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Overall, the examining physician found that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity. First, the Board will determine whether a rating in excess of 50 percent is warranted under Diagnostic Code 8045. However, upon evaluating the record, the Board finds that the evidence does not support a higher rating. The Veteran had undergone various TBI evaluations, which have shown problems with his memory, attention, concentration, subjective symptoms that moderately interfere with work, and on occasion, neurobehavioral effects that occasionally interfere with workplace interaction. However, taken together, the Veteran has not demonstrated a facet level of higher than 2. For example, at most, the record documented objective evidence of mild impairment of memory, attention, concentration, at level 2, during his May 2018 private TBI evaluation. At that examination, he also exhibited a level 2 impairment regarding neurobehavior effects. He consistently demonstrated three or more subjective symptoms, which represents a facet level of 2, at his May 2018 evaluations and at his July 2020 examination. To warrant a 70 percent rating or higher under diagnostic code 8045, the Veteran must demonstrate an impairment of level of at least 3. It has not been the case here. The Board is also mindful of the Veteran’s more recent complaints of his communication skills, particularly his mispronunciation of words and his poor memory. However, the objective medical testing found that the severity of his symptoms, taken together, does not exceed level 2 impairment. The evidence does not show that the Veteran is unable to communicate either by spoken language or written language (or both) at least half the time. Cognitive speech pathology notes indicate that the Veteran experiences communication issues only in certain speaking situations or when he feels urgency to express ideas quickly. While he may require extra time to process or express his thoughts, he has not reported an inability to communicate so severe that he heavily relies on the use of gestures or any other alternative modes of communication. The Board does not doubt that the Veteran’s condition has caused him some level of inconvenience and difficulty in his daily living. But after consideration of the objective medical testing along with his lay statements, the Board finds that the evidence has not shown that his symptoms produce a level of impairment compensable under a 70 percent rating or more. His memory, attention, concentration, executive functions have not resulted in moderate or severe impairment. There has been no showing that he suffers from moderately severe or severe judgment in his routine and familiar decisions. He has been consistently oriented to all four aspects and has not shown any impairment in motor activity. He has not demonstrated neurobehavior effects that interfere with or preclude workplace interaction and/or social interactions that would require supervision for safety of himself or others. Therefore, a rating in excess of 50 percent is not warranted under diagnostic code 8045. Second, the Board will determine whether a rating in excess of 50 percent is warranted under Diagnostic Code 9413. However, upon evaluating the record, the Board finds that the evidence does not support as such. While the Board is mindful of the Veteran’s psychiatric symptoms and his struggles, his collective medical evidence does not show symptoms compensable under a 70 percent rating such as having obsessive rituals that interfere with routine activities, illogical speech, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, neglect of personal appearance, or an inability to establish and maintain effective relationships. His various VA examinations and treatment records show that he mostly experiences chronic sleep problems, nightmares, mild memory loss, irritability, and hypervigilance. His July 2013, September 2013, August 2015, February 2016, July 2020 VA examinations, and his August 2014 Board hearing testimony, have consistently reported depressed feelings, anxiety, and suspiciousness towards others. Throughout the appeal period, both the Veteran and his wife have noticed his preoccupation with safety and security. While this does demonstrate impaired abstract think as reported in the July 2013 examination, it does not rise to the level of obsessional rituals which interfere with routine activities. The Board notes the Veteran had been able to manage his daily living on own, with some help from his wife. He has even been able to attend school and work for most of the time during his appeal period. The Board specifically notes that at his June 2012 private mental evaluation, the Veteran reported thoughts that he was better off dead and reported that he can smell burning. However, these reports were not echoed in his overall treatment record, nor has the Veteran continued to report as such in his subsequent lay statements. While these symptoms are recognized under a 70 percent rating, the Veteran lacks the frequency, duration, and severity of these particular symptoms to warrant a higher rating. Moreover, while the July 2013 VA examiner found that the Veteran’s psychiatric symptoms result in social and occupational impairment with deficiencies in most areas, the assessment was made based on additional diagnoses (such as PTSD and major depressive disorder), for which the Veteran had not been service connected. Thus, while he may have presented worsened symptoms during the July 2013 VA examination, it was not representative of his overall service-connected psychiatric symptoms. In fact, from September 2013 onwards, the Veteran has consistently denied having any suicidal thoughts, hallucinations, or delusions. The Board also acknowledges the Veteran’s assertions made by his representative in his January 2021 IHP, which included arguments that the Veteran’s service-connected psychiatric condition is so severe that it has significantly impacted the Veteran’s work productivity as a claim’s assistant at the Veterans Benefits Administration. For example, his work output had reduced from between 70-80¬ cases down to only 34 cases. The Veteran reported that he had been working from home for over a year and finds it hard to keep up with work, citing to concentration and short-term memory problems. Upon considering the Veteran’s difficulties at work, the July 2020 VA examiner concluded that the Veteran’s symptoms result in his difficulty in establishing and maintaining effective work and social relationships, and reduced productivity, which are compensable under a 50 percent rating. There is no indication that his problems at work are due to more severe symptoms such as obsessional rituals, poor judgment, illogical thinking, or near-continuous panic. While the Veteran may report that it is difficult to establish and maintain effective work relationships, it is also likely due to the isolative nature from working at home. Throughout the appeal period, the Veteran has appeared at multiple VA examinations, during which it was consistently shown that he was neatly dressed, well oriented to time, person, place, and situation. He was mostly cooperative and engaging. Often times, his thought process was logical, and his speech pattern was within normal limits. He was goal directed. Despite his complaints of poor attention and concentration, it was noted on several occasions that he was attentive and cooperative during his evaluations. He did not show any indication that he had poor impulse control or that he poses a danger to himself or anyone else. Finally, the Board has considered whether a rating of 100 percent is warranted but found that it is not. While the Veteran has credibly reported that his work and social functioning has been significantly affected, the weight of the evidence does not indicate a total occupational and social impairment. The record shows that the Veteran is still working. He has maintained a relationship with his wife and has even expressed satisfaction with his marriage to her and several children. Furthermore, while the Veteran has demonstrated some memory loss, it is not so severe as to result in forgetting his own name or the names of his close relatives. The level of severity and frequency have been appropriately compensated under a 50 percent rating. He has not shown to be disoriented to time or place. He has not exhibited grossly inappropriate behavior or is shown to be a persistent danger to himself or others. Moreover, the evidence does not show that the Veteran is totally socially impaired. As such, a rating of 100 percent is not warranted. Accordingly, a rating in excess of 50 percent is no warranted for the Veteran’s psychiatric disorder. TDIU The Veteran asserts that his service-connected psychiatric disorder (with TBI) causes sleep impairment, avoidance behavior, hypervigilance, concentration and attention problems, and difficulty adapting to stress in work setting, that render him unemployable. His application dating September 2020 indicates that the Veteran was not able to work between August 1, 2011 and March 2016. The record indicates that the Veteran is currently employed. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). In reviewing the record, the Board finds that the Veteran met the schedular criteria for TDIU for the time period in question. On August 1, 2011, the Veteran was service connected for traumatic brain injury with anxiety disorder, not otherwise specified at 50 percent, lumbar spine disability at 10 percent, right ankle strain at 10 percent, tinnitus at 10 percent, and GERD at 10 percent. He was also service connected for hemorrhoids and pseudofolliculitis, both at a noncompensable rating. He had a combined rating of 70 percent, from August 1, 2011. By October 7, 2014, the Veteran was service-connected obstructive sleep apnea at 50 percent and migraine headaches at a 30 percent rating for his migraine headaches. This increased his total disability rating to 90 percent and remained as such beyond March 2016. Since the Veteran met the schedular criteria for TDIU for the period between August 1, 2011 and March 2016, the Board will now determine whether the Veteran was in fact, precluded from obtaining substantial employment due to his service-connected disabilities. Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). At his September 2011 VA examination, the examiner noted that the Veteran had not been working. He underwent a career aptitude test in December 2012, which showed that he scored well regarding form perception, clerical perception, motor coordination, finger and manual dexterity. He was found qualified for work in plants/animals, land/motor vehicle operation, crafts, equipment operation, mechanical work, production work, quality control, industrial work, clinical handling, barber and beauty services, passenger and attendant services. A December 2012 Counseling Narrative report noted that the Veteran has been diagnosed with anxiety and experienced panic attacks, interpersonal difficulties, and sleep difficulties. His anxiety has adversely affected his concentration and short-term memory. His psychiatric symptoms and GERD both have been maintained by medication and his symptoms have been improving over the past several months. The counseling report noted that the Veteran’s work history heavily consists of military work in mortuary affairs, which included recovery and search operations. He did not have any civilian work experience. After his separation, he enrolled in school under the GI bill and obtained an associate degree in Liberal Arts from Central Texas College. He then enrolled at Hamline University and began a pre-law bachelor’s degree program but exhibited some struggles. Despite being able to somewhat control his symptoms, the December 2012 counselor found that the Veteran’s service-connected disabilities contribute in substantial part to the vocational impairment. He was restricted in the types of physical work performed due to the limitations cause by anxiety, decreased concentration and memory. He was unemployed as a result. Moreover, the Veteran has not overcome the impairment to employability because he is lacking in transferable skills, education, and work experience that would qualify him for suitable employment that would both be compatible with his disabling limitations, and that are consistent with his interests, aptitudes, and abilities. Therefore, his status of unemployment was outside his control. Specifically, the counselor found that the Veteran met the criteria for an employment handicap due to the fact that his service-connected disabilities contribute in substantial part to the vocational impairment. His serious employment handicap includes problems with current neuropsychiatric conditions, negative attitudes towards the disabled, extent and complexity of needed rehabilitation, and lack of education or training for suitable employment. In May 2013, the Veteran’s rehabilitation counselor reported that the Veteran dropped a class from his school schedule due to medication adjustment, which was significantly affecting his concentration. However, he reported doing well in his other classes. His finances and housing were stable. He continued to participate in counseling at the VAMC to address his PTSD. But despite counseling, a VA examination in July 2013 noted that the Veteran’s psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. By September 2013, improvements were noted as his narrative counseling report suggested that the Veteran’s pursuit of a vocational goal is currently reasonably feasible. It was shown that he continued with medication management and had been participating in individual counseling. His college transcript showed that he had been passing his classes in paralegal and legal studies. In a February 17, 2016, a vocational and rehabilitation counseling note indicated that the Veteran had been employed at Metro Airport Commission as a Customer/Passenger Services Assistant, a position he had been holding since March 2014. The Veteran told the counselor that he was interested in completing a B.A. in organizational management and leadership degree. He withdrew from his vocational rehabilitation program that same month but was reinstated in April 2016. In October 2019, the Veteran’s VA examination report for his headaches noted that he reported trying to return to college in 2013 but was unable to due to his problems with concentration. However, this is contradicted by an earlier VA examination in January 2017, where the Veteran told his VA physician that he planned to transfer to Metro University to pursue a law enforcement degree after his classes at Rasmussen College. Additionally, the physician also noted that the Veteran had no problems with work organization. There, the Veteran also reported to managing his own finances and activities of daily living. Taken in totality, the Board finds that the limitations associated with the Veteran’s service-connected disabilities either singularly or in combination, do not render him unable to secure or follow a substantially gainful occupation at any point during the period on appeal. In applying the facts, the Veteran’s medical treatment records clearly shows that he struggled with anxiety, memory, attention, and concentration problems. He also has some limitations with physical movement due to his service-connected back and right ankle disability. Based on his vocational and rehabilitation report, the Veteran was not employed for a limited time. The Board notes that he has extensive experience in mortuary affairs during active duty but not much in the way of civilian work. However, there is no indication that the Veteran lacks the cognitive ability or motivation in transferring and applying his skills. In fact, the Veteran enrolled in vocational rehabilitation programs in order to broaden his career options during period of employment between 2011 and 2014. A career aptitude test in December 2012 revealed that he scored highly in form perception, clerical perception, motor coordination, finger and manual dexterity. He was qualified to work in several fields that ranges from equipment operations, industrial work, and customer services in aviation. Moreover, the record clearly shows that the Veteran possesses the intelligence and aptitude in pursuing higher education. Rehabilitation counseling reports did, in fact, document decent marks excepting one incident where he dropped a class from his schedule. The Veteran reported dropping the class due to new medication adjustment, which had affected his concentration. The counseling report also noted that he was also able to properly maintain his housing situation and his own finances. His various VA examination reports, while finding some physical limitations and occupational impairments, indicate his overall condition does not preclude him from obtaining substantial employment. The Board does not doubt the difficulties experienced by the Veteran due to his service-connected disabilities in seeking a job. However, it places more weight on the Veteran’s overall record, which shows a level of both social and educational adaptability. His medical treatment records do not show that he demonstrates psychiatric impairments, pain or physical limitations beyond what is depicted and rated. While the Veteran’s service-connected disabilities do cause some interference with employment, it does not preclude all employment. Moreover, recent records continue to show that the Veteran is still currently employed, now at a new location. As asserted by his representative in his January 2021 IHP, which was also confirmed by the July 2020 TBI VA examination report, the Veteran had been working for the Veterans Benefits Administration as a claim’s assistant. He had been working from home even prior to the COVID19 pandemic restrictions. However, he has reported a significant reduction in his productivity. For example, it was noted in his July 2020 VA examination that his ability to process claims have dropped from 84 to 34 cases. He argues that his employment at the Veterans Benefits Administration is ‘marginal,’ as his effectiveness in his duties is called into question. The Board, however, is not persuaded by such arguments. He has not shown that his earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. See Faust v. West, 13 Vet. App. 342 (2000). Additionally, he has not asserted that his work is in a protected employment, such as a family business or sheltered workshop. Rather, he is currently a full-time employee of the federal government. The Board also notes that it has not been shown or asserted that he has taken excessive amounts of leave from work to cope with his symptom nor has it been shown that the Veteran is in receipt of an accomodation through the federal government. The Veteran’s overall training and educational history, along with his current employment are inconsistent with the inadaptability picture illustrated by the December 2012 vocational counselor. The Board also highlights the fact that during a large portion of when the Veteran was unemployed, he was pursuing higher education, albeit with some struggles. However, his college transcripts even documented good grades in paralegal and legal studies. Therefore, the Board affords the December 2012 vocational rehabilitation report less probative weight that the VA examinations and treatment records. (Continued on the next page)   While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability level, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. Although they undoubtedly produce some, even significant, impairment, the evidence does not reflect that gainful employment is precluded solely due to the Veteran’s service-connected disabilities. Overall, the probative medical evidence of record is against a finding that it is at least as likely as not (50 percent or greater) that the Veteran is rendered unemployable due to his service-connected disabilities at any point during his appeal period. While the Board respects the vocational expert’s qualifications, the Court and Federal Circuit have held that the ultimate question of whether a veteran is capable of substantial gainful employment is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board, as finder of fact, has reviewed the competent evidence in this case, but ultimately concludes that the Vocational Consultant’s Opinion does not establish that the Veteran is unable to obtain or maintain substantially gainful employment, as a result of his service connected disabilities. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.