Citation Nr: 21028105 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-27 082A DATE: May 10, 2021 ORDER Entitlement to an initial disability evaluation in excess of 30 percent prior to December 19, 2016 and an increased evaluation in excess of 50 percent thereafter for major depressive disorder, to include residuals of a traumatic brain injury (TBI), is denied. Entitlement to an initial disability evaluation in excess of 50 percent for migraine headaches is denied. Entitlement to total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), is granted from September 26, 2013. FINDINGS OF FACT 1. The objective medical evidence shows that prior to December 19, 2016 the frequency, severity and duration of the Veteran's symptoms of major depressive disorder, to include residuals of a TBI, more closely approximate occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to associated symptoms, and thereafter more closely approximate occupational and social impairment, with reduced reliability and productivity, due to associated symptoms. 2. The Veteran has received the maximum schedular rating for migraine headaches under Diagnostic Code 8100. There are no reported symptoms or findings suggesting that the application of regular schedular provisions is rendered impractical. 3. The evidence of record in the period prior September 26, 2013 shows the Veteran's service-connected disabilities alone precluded him or an average person from securing and following a substantially gainful occupation, but in the period prior to that date from October 25, 2012, when the Veteran's combined rating was only at 60 percent, the Veteran's disability picture does not present exceptional aspects associated with the Veteran's service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 30 percent prior to December 19, 2016 and an increased evaluation in excess of 50 percent thereafter for major depressive disorder, to include residuals of a TBI, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.130, Diagnostic Code 9434 (2020). 2. The criteria for a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8100 (2020). 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for TDIU have been met as of September 26, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1983 to February 1987. A 2018 rating action granted service connection for a psychiatric disorder, and combined the rating for the TBI with the psychiatric pathology. During Remand development, requested by the Board in April 2019, a separate rating was assigned for residuals of a TBI that were found distinguishable from the psychiatric disorder. A separate 40 percent rating was assigned. There has been no disagreement with that action and that matter is not before the Board. In view of the grant of a TDIU below for the period, there is no prejudice in proceeding with the other matters on appeal. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019). 1. Entitlement to an initial disability evaluation in excess of 30 percent prior to December 19, 2016 and an increased evaluation in excess of 50 percent thereafter for major depressive disorder, to include residuals of a TBI. The Veteran's major depressive disorder is currently evaluated under Diagnostic Code 9434, but most psychiatric disorders are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which provides a 30 percent evaluation for occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: Depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and/or mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130. (As noted above, the residuals of the TBI were not dissociated from those of the psychiatric disorder during this time.) A 50 percent evaluation requires demonstrated evidence of occupational and social impairment, with reduced reliability and productivity due to such symptoms as: A 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; and/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating will be 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; memory loss for names of close relatives, one's own occupation or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, which would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. A January 2018 rating decision granted service connection for major depressive disorder at 30 percent, effective September 26, 2013, the date VA received the Veteran's claim for service connection, and at 50 percent, effective December 19, 2016., the date of the VA examination showing findings of worsening symptoms. Turning to the record, in the period prior to December 19, 2016, VA psychiatric notes between July 2013 and January 2014 show mental status examination results as follows, with variant findings in the period included: Alert and fully oriented, normal gait and station, mood and affect congruent (July 2013: "confused... have a good attitude..."), with full range. Speech articulated with normal rate, volume and prosody. Thoughts organized. No gross cognitive deficits noted (July 2013: He seems to have difficulty remembering his medications and recent treatment history; he knows last three presidents, remembers 2/3 items after short delay; August 2013: Poor memory regarding past treatment and remote history regarding injuries), insight and judgment are intact. No suicidal ideation, homicidal ideation and no psychotic symptoms. In general examination with a private treatment provider between July 2013 and February 2016, the Veteran's mental status examination results were the following: Insight good, judgment normal, mood and affect were active and alert, oriented to time, place and person, and normal recent and remote memory. In a March 2014 VA examination for PTSD, the VA examiner stated at the outset the Veteran's symptoms do not meet the required criteria for PTSD and diagnosed instead unspecified anxiety disorder with depressive features. The Veteran reported symptoms of depression, anxiety attacks and nightmares. The March 2014 VA examiner found 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. Her behavioral observations were the Veteran exhibited a casual appearance and good grooming, cooperative attitude, fully oriented cognitively, and his speech was clear and coherent. his mood was "confused when we first started." he stated his mood is normally "good" and his affect became tearful when providing history because he stated he is confused easily. He reported difficulty falling asleep and interrupted by nightmares, average appetite and his energy fluctuates, possibly due to diabetes. His thought process "is rambling at times," but his thought content is within normal limits. He indicated no hallucinations, no suicidal ideation and no homicidal ideation. His attention was easily distracted and his memory, upon testing, suggested mild cognitive impairments. A February 2015 VA mental health note shows the following mental status examination results: Casually dressed, adequately groomed and appropriately dressed for the season. Eye contact was fair. Behavior calm and cooperative. No abnormal movements such as a tremor. No psychomotor agitation or retardation. His speech showed normal rate, rhythm and volume, productivity, His mood and affect were "okay"/ restricted. Thought processes were goal directed, linear and no circumstantiality, no tangentiality, no looseness of associations or flight of ideas. Thought content showed no suicidal ideation, no homicidal ideation, no audiovisual hallucinations and no delusions. His insight/judgment were both fair. Gross cognitive functioning was grossly intact during clinical interview, with no formal testing done that day. September through December 2015 VA mental status examination results showed the Veteran's appropriate appearance and grooming, fair eye contact, appropriate speech with regular rate and rhythm. His behavior was mildly restricted due to back pain; also, somewhat fidgety at times. Mood was anxious; also, "ok;" also, "Mood has been a little down the past couple of days." His affect was mostly calm, His attention, concentration and memory span were affected by his difficulty with traumatic brain injury (TBI). He was oriented to person, place, time, and situation. Thought Content indicated no auditory hallucinations, visual hallucinations, thought disorder, paranoid ideations, suicidal ideations, or homicidal ideations. Thought process was coherent and insight and Judgment were both fair. As already stated above, the symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, of their effects or of an occupational and social impairment equivalent which would justify a higher rating. Therefore, the Board will consider when necessary whether some symptoms may be reasonably similar to or suggested by the criteria associated with the higher ratings of the General Rating Formula. However, in looking to 38 C.F.R. § 4.126 (a), the Board also notes that it "shall consider frequency, severity, and duration of psychiatric symptoms...." The Board understands that regulation, in its use of the phrase "shall consider," to require consideration of such factors. See also Vasquez-Claudio v. Shinseki, 713 F.3d 112 116-17 ("Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level") (Fed. Cir. 2013). Consequently, in following this directive, the Board will consider the factual context regarding symptoms, that is to say, by their temporal significance and their intensity. As already stated, in the period prior to December 19, 2016, the Veteran is rated at 30 percent and, in considering the summary of the record above and looking to those symptoms found during treatment or on examination in the period prior to December 19, 2016, as a factual determination for the purposes of adjudication, the Board does not discern symptoms, either directly or by way of analogy, indicating an occupational and social impairment at a 50 percent rating or higher, due to consistent or frequent symptoms for that evaluation. For example, there are no findings in the numerous mental status examinations of a flattened affect. Although, between July 2013 and January 2014, some, but not all, mental status examinations note the Veteran's difficulty remembering his medications and recent treatment history, it was also found that he "knows last three presidents, remembers 2/3 items after short delay." This does not suggest the frequency of a persistent impairment. VA mental health notes between November 2013 through June 2014 show findings of "no gross cognitive deficits." There are no findings on examination in the period prior to December 19, 2016 of panic attacks. Moreover, although the March 2014 VA examiner found thought processes "are rambling at times," this does not indicate the frequency or duration of impaired thinking, abstract or otherwise. Indeed, in February 2015, the VA treatment provider found thought processes were "[g]oal directed, linear; no circumstantiality, no tangentiality, no looseness of associations or flight of ideas." September through December 2015 VA mental status examination results in fact found no thought disorder whatsoever. The next higher rating under the General Rating Formula for 70 percent for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, refers to symptoms similar to or suggestive of suicidal ideation. There were no such findings or reports in the period. Other prominent indicators of higher disability are suggested by symptoms of speech being intermittently illogical, obscure or irrelevant. As just stated, the March 2014 VA examiner found the Veteran's thought processes to be rambling at times, but she also specifically found "his speech was clear and coherent." Once again, there were no findings of panic attacks. There were no findings of impaired impulse control, which might culminate in violence and, although there were findings of symptoms of depression, no examiner or treatment provider made a finding of it affecting functionality. Also as already set forth above, criteria for a 100 percent rating in the General Rating Formula include symptoms similar to or suggested by 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; memory loss for names of close relatives, one's own occupation or own name. These are symptoms of total disability, effectively precluding all independent functioning. However, the record above does not show reports or findings of grossly impaired thought processes, diminished communication abilities, irritability culminating in violence, or grossly inappropriate behavior, as well as any inability to perform activities of daily living or disorientation of any sort, as well as no indications of persistent hallucinations. Based on these or similar criteria, the record does not provide evidence of complete and total impairment. In the period from December 19, 2016, the August 2016 through November 2019 VA psychiatry clinic notes show mental status examination results of good appearance, normal psychomotor movement, normal speech, depressed and anxious mood, appropriate and restricted affect, organized thought processes, normal thought content, alert and oriented to time, place and person, grossly intact memory, intact and good judgment, good fund of knowledge, no hallucinations, no suicidal ideation, and no homicidal ideation. In a December 2016 VA examination for mental health disorders, the VA examiner diagnosed major depressive disorder with anxious distress. She noted the Veteran's reports of increased anxiety, worry, "keyed-up" and agitated most of the time, suspicious of intentions of others, withdrawal to his home, and panic attacks at a frequency of 1-2 times daily. He further reported irritability, easily angered, crying spells, loss of interest in previously enjoyed activities, loss of motivation to complete activities of daily living, forgetfulness, poor attention and concentration, distractibility, poor sleep and recurrent nightmares, and poor appetite. The December 2016 VA examiner found occupational and social impairment, with reduced reliability and productivity. Associated symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. Her behavioral observations were the following: "Veteran presented as a polite and cooperative man who was alert and oriented, and displayed no overt signs of psychosis. His behavior during the interview was appropriate. He was able to answer questions and provided appropriate verbalizations. His grooming and hygiene were good. His eye contact was appropriate. He talked openly about his problems. His mood was depressed and affect was anxious and tearful. He reported that he sleeps poorly getting approximately 4 hours a night before waking due to pain and physical discomfort and occasional nightmares. He uses his C-PAP at night. He endorsed a sleep continuity disturbance. His appetite is variable and he will eat two to three meals daily. Speech was logical, goal directed, normal in rate and tone and there were no difficulties with articulation or prosody. Thought processes were within normal limits and reality testing was intact. Thought content was within normal limits, and there were no indications of auditory or visual hallucinations, he did not manifest any bizarre mentation or abnormal fears or obsessions during the interview. He denied homicidal and suicidal ideation. His insight and judgment are good." The December 2016 VA examiner concluded in her remarks that difficulties concerning memory, concentration, learning capacity, verbal comprehension, word finding, mapping skills, and chronic migraine headaches are due to residuals of TBI. In a May 2020 VA examination for mental health disorders, the VA examiner diagnosed the Veteran with recurrent and mild major depressive disorder. He noted the Veteran's reports of his current varying mood and lack of motivation in activities of daily living, although he engages in craft projects with his daughter. He denied generalized anxiety, but reported worrying about his finances and marriage. He reported intrusive memories about his military service, such as "being hurt by an explosion," but generally could not describe things well. He was not distressed talking the memories, but stated he will "cry about it." He did not report any avoidance behaviors when asked. He reported he expects bad things to happen and is hypervigilant, he sleeps for 6-7 hours a night with a few brief awakenings, and there are nightmares a few times a week about shootings and explosions. He denied suicidal ideation. He further reported diminished memory, concentration and the ability to finish tasks. The May 2020 VA examiner found occupational and social impairment with reduced reliability and productivity. Associated symptoms were depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in understanding complex commands, and impaired abstract thinking. His behavioral observations were the following: The Veteran was on time, clean and well-groomed, and casually dressed. A Mental status examination showed the Veteran was alert and generally oriented in all spheres, he only missed the date by a few days but was correct for year, month, and day of week. He gave a close estimate of the current time of day. He was cooperative and appeared sincere. He maintained good eye contact. His speech was normal for rate, prosody, tone, volume, and content. Comprehension appeared intact. His thought process was linear and goal directed. Thought content was unremarkable. His memory and cognition were grossly intact during the exam. There was no evidence of auditory or visual hallucinations. Insight and impulse control were intact. The May 2020 concluded in his remarks that slowed processing speed and reported issues with memory, abstraction, and following complex commands more likely than not represent residuals of TBI. All other symptoms are attributable to his recurrent, mild major depressive disorder diagnosis For the period from December 19, 2016, the findings in the December 2016 VA examination are the basis of the Veteran's increased rating to 50 percent. For example, the Veteran's memory difficulties appear in this period more pronounced and disabling. He is more distracted, affecting the completion of tasks. However, although the Veteran reported to the December 2016 VA examiner he experienced panic attacks as much as 1 2 times daily and the December 2016 VA examiner found this symptom as "panic attacks more than once a week," neither his report nor her finding suggest "near-continuous" panic attacks, as indicated for a 70 percent rating. Nor were there findings in this period of speech intermittently illogical, obscure or irrelevant (70 percent ) or gross impairment in thought processes or communication (100 percent). The May 2020 VA examiner in fact found on examination the Veteran's speech rate, tone and content were normal, his comprehension appeared intact, thought process was linear and goal directed, thought content was unremarkable and his memory and cognition were "grossly intact." For the same reasons stated for the period prior to December 19, 2016, the record overall does not consistently or frequently indicate impaired thought processes, diminished communication abilities, irritability with violence, or suicidal or homicide ideation. The December 2019 VA examiner in fact declared the Veteran neither "a current imminent nor an increased risk at this time." The findings on examination and in treatment sessions between 2013 and 2020 do not satisfy or are reasonably similar to the criteria for higher disability evaluations. The Board has carefully considered the two March 2014 lay statements of the Veteran and his mother, as well as the Veteran's reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his mother are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. Nonetheless, their lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The statements and the Veteran's reports to examiners and treatment providers give highly detailed information of the Veteran's current symptoms at various times. However, as a factual determination by the Board, in the long period of treatment and examination between 2013 and 2020, the findings on examination and treatment were made after noting and considering those reports, but offer greater clinical analysis. For example, both the December 2016 and May 2020 VA examiners, although noting and considering the Veteran's reports of symptoms of concentration problems, difficulty following complex commands and particularly memory impairment, found such symptoms more likely to be due to residuals TBI, rather than major depressive disorder. The Board therefore assigns more probative value to the findings of the VA examiners and treatment providers, as they were psychiatric professionals who conducted their examinations and interviews during in-person sessions with the Veteran, they thoroughly reviewed the Veteran's medical history and their findings, for the reasons stated above, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For these reasons stated and based on the objective medical evidence, the Board finds the preponderance of the evidence does not support a disability evaluation in excess of 30 percent prior to December 19, 2016 and in excess of 50 percent thereafter. 2. Entitlement to an initial disability evaluation in excess of 50 percent for migraine headaches. A March 2013 rating decision granted the Veteran's claim for service connection for migraine headaches at a 50 percent disability rating, effective October 25, 2012, the date VA received the Veteran's supplemental claim for service connection. The Veteran's migraine headaches are rated under Diagnostic Code 8100, providing the 50 percent rating for migraine headaches with very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a. However, there is no higher rating under this diagnostic code. Moreover, there is no other diagnostic code to which the Board can look for assigning a higher schedular rating, as the rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Therefore, this effectively renders 38 C.F.R. §§ 4.7 and 4.21, under which a higher evaluation under an analogous or closely related diagnostic code might be used, inapplicable. Consequently, as a matter of law, a schedular rating in excess of 50 percent cannot be assigned. See Sabonis v. Brown, 6 Vet. App. 426, 430, (1994). It is noted that there are no complaints or findings of symptoms outside those contemplated by this code or that for TBI as to suggest that application of the regular schedular provisions is rendered impractical. Extraschedular consideration is not warranted. 3. Entitlement to TDIU. A finding of TDIU is appropriate "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 (a)(1), 4.15. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by non-service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record must reflect that circumstances, apart from non-service-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. Put another way, assignment of a TDIU evaluation requires that the record reflect some factor which "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in considering his or her service-connected disabilities, can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Additionally, "substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to the veterans earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Marginal employment, odd-job employment and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17 (a). Total disability ratings for compensation may be assigned when the schedular rating is less than total and 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, that disability shall be ratable at 60 percent or more. If there are two or more such 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. 38 C.F.R. § 4.16 (a). The United States Court of Appeals for the Federal Circuit has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the VA Regional Office. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As of September 26, 2013, the Veteran was service connected for major depressive disorder at 30 percent from that date and at 50 percent from December 19, 2016, migraine headaches at 50 percent from October 25, 2012, TBI at 10 percent from October 25, 2012 through September 26, 2013 and 40 percent from May 13, 2020, and he is service connected for tinnitus at 10 percent from May 15, 2009. He is service connected for hearing loss and blepharospasm at noncompensable ratings. The Veteran's combined ratings are 70 percent from September 26, 2013, 80 percent from December 19, 2016 and 90 percent from May 13, 2020, satisfying the regulatory threshold of one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. However, in the period in which the Board begins it consideration of the evidence, approximately one year prior to September 26, 2013, the Veteran's combined service-connected disabilities were at no more than 60 percent. Service connection had not yet been established for the psychiatric disorder. That combination does not satisfy the regulatory threshold of a single 60 percent rating or a combined rating of 70 percent. That notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, although the schedular criteria for TDIU, as set out in 38 C.F.R. § 4.16 (a), are not met, a total rating on an "extraschedular" basis nonetheless may be granted in exceptional cases (and pursuant to specifically prescribed procedures) when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). Therefore, to accord justice in the exceptional case when the schedular ratings are found to be inadequate, the Director of the Compensation Service, upon field station submission, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Neither the Regional Office (RO) nor the Board is permitted to assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). However, the Board may review the later determinations of the Director of the Compensation Service. Anderson v. Shinseki, 22 Vet. App. 423, 427. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to review the entire record, the Federal Circuit has held that the Board does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Turning to the record, the June 2015 Application for Increased Compensation based on Individual Unemployability (VA Form 21-8940) states the Veteran last worked full-time in October May 2012 and his disability first affected full-time employment and he became too disabled to work also from that date. The service-connected disabilities preventing him from securing or following any substantial gainful employment were "migraines; TBI; tendonitis; hearing loss." His reported employment history was as a deputy sheriff, at least for 2003 and an equipment operator from 2006 to 2010 and from January 2011 through May 2012. There is no indication of further employment. Form 8940 shows the Veteran completed a high-school education. The Board further notes from his Certificate of Discharge (DD Form 214), the Veteran's in-service training includes instruction pertaining to his initial military occupation specialty of indirect fire infantryman, but also course instruction for drivers training, wheeled-vehicle mechanic and patient administration specialist. The March 2014 VA examiner for PTSD noted that an individual with significant brain injury, as with TBI, would likely not be able to hold the Veteran's former position as a heavy equipment operator in construction work. Yet, both March 2014 VA examiners for TBI and headaches concluded that those disorders do not impact the Veteran's ability to work. The January 2017 VA examiner for headaches stated the Veteran's migraine headaches do not impact the ability to work. However, the January 2017 VA examiner for TBI stated the Veteran's chronic history of headaches, migraines, difficulty sleeping, irritability, becoming easily frustrated, intermittent nausea, intermittent dizziness, intermittent photophobia, and intermittent scotomas may have an impact in his ability to work. The September 2019 VA examiner for TBI concluded there would be no impact of TBI on the Veteran's ability to work. The March 2021 VA examiner for TBI stated TBI would impact the ability to work, as the Veteran would have difficulties focusing or concentrating on complex tasks and be unable to multitask. The September 2019 VA examiner for headaches stated headaches would impact the ability to work, as the Veteran's headaches are severe enough he would miss work 2 days per week. The March 2021 VA examiner for headaches also concluded the Veteran's ability to work would be impacted, as the Veteran would be unable to focus or concentrate, unable to tolerate bright light or focus on computer screens and unable to tolerate loud noise. The record shows the Veteran participated in VA vocational rehabilitation program since at least March 2013. A March 2014 counseling record narrative report states, although employment for the Veteran was originally determined to be feasible in July 2013, his medical disorders have continued to worsen, the Veteran has not been successful in employment attempts and it therefore was determined he is not suitable for entry-level employment. The vocational counselor noted the Veteran's last position prior to this narrative report was temporary, lasting only 3 months. Two jobs prior to the last were also temporary, as he was laid off due to his back disorder. She added that the Veteran's last permanent position was as an equipment operator from 2005 to 2010, which ended because of the impact of his debilitating headaches and non-service-connected lumbar-spine disorder. The vocational counselor further noted that, in June 2013, the Veteran had looked into training as a marine mechanic, but, with the impact of his disabilities, his age and the lack of training yet completed, he realized training and subsequent employment was not viable for this position or in fact any other vocational goal. The vocational counselor concluded that employment "is no longer a feasible goal." She added in her cover letter to the Veteran, "You are not feasible for Vocational Rehabilitation and Employment, nor is it believed that other employers would hire you with the numerous limitations to employment." After considering the totality of the record, the Board finds the preponderance of the evidence in the period from September 26, 2013 shows the Veteran's service-connected disabilities alone preclude him or an average person from securing and following a substantially gainful occupation, However, in the short period prior to that date from October 25, 2012, when the Veteran's combined rating was only at 60 percent, the record does not reveal exceptional aspects associated with the Veteran's disabilities to warrant referral to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). The Board has considered the benefit-of-the-doubt doctrine. However, regarding the claims on which the Board has not ruled favorably, it does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against those claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.