Citation Nr: 21029493 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-47 131 DATE: May 13, 2021 ORDER An initial compensable rating of 10 percent, and no higher, for the service-connected traumatic brain injury (TBI) is granted. An initial rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD) prior to November 2, 2015, in excess of 30 percent from January 1, 2016 to September 14, 2016, and in excess of 70 percent from September 15, 2016 to the present is denied. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran's TBI was manifested by a complaint of mild loss of memory with difficulty concentrating, and also manifested by three or more subjective symptoms (moderate headaches, tinnitus, and frequent insomnia). 2. Prior to September 15, 2016, outside of the period during which the Veteran received a temporary total rating, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 3. From September 15, 2016 to the present, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, and no higher, for TBI are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.20, 4.124a, Diagnostic Code 8045. 2. The criteria for a disability rating in excess of 30 percent for the service-connected PTSD prior to November 2, 2015, in excess of 30 percent from January 1, 2016 to September 14, 2016, and in excess of 70 percent from September 15, 2016 to the present are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2008 to November 2012. The Veteran filed a claim for service connection for PTSD and for TBI in September 2014. Both claims were granted by way of an April 2015 rating decision. An initial 30 percent rating was assigned for PTSD and an initial noncompensable rating was assigned for TBI. The Veteran appealed both assigned ratings. In March 2016, a rating decision was issued assigning a temporary evaluation of 100 percent for the PTSD due to hospitalization, effective November 2, 2015. The 30 percent evaluation resumed as of January 1, 2016. In July 2016, a rating decision was issued awarding a 10 percent rating for TBI, effective July 19, 2016. A September 2017 rating decision was then issued awarding a 70 percent rating for PTSD, effective September 15, 2016. The Veteran has not indicated satisfaction with any of the increased ratings assigned and they do not represent the maximum ratings available for either TBI, or PTSD (but for the period of the temporary total evaluation). The ratings for these disabilities, therefore, remain on appeal. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Thus, the matters before the Board of Veterans' Appeals (Board) include whether an initial compensable rating prior to July 19, 2016, and a rating in excess of 10 percent thereafter, is warranted for TBI; and whether a rating in excess of 30 percent prior to November 2, 2015, in excess of 30 percent from January 1, 2016 to September 14, 2016, and in excess of 70 percent from September 15, 2016 to the present is warranted for PTSD. The Veteran was afforded a hearing in June 2019 before the undersigned. A transcript of that hearing is within the claims file. In January 2020, the Board remanded these matters in order for updated treatment records referenced at the June 2019 hearing to be associated with the claims file and for the RO to readjudicate the claims with review of all records received since the September 2017 supplemental statement of the case (SSOC). Records subsequently added to the claims file include a May 2, 2019 report referenced by the Veteran at his hearing, as well as evidence showing the VA clinicians attempted to contact the Veteran and schedule follow up appointments. August 2019 notes show efforts to schedule the Veteran were discontinued after several failed attempts to contact him. In February 2020, the Regional Office (RO) sent the Veteran a letter asking him for more information related to his treatment, including providing him with a VA Form 21-4142 to authorize VA to assist him with obtaining copies of private treatment records. The Veteran did not respond. The Board finds the RO has substantially complied with the January 2020 remand directives and the record has been developed to the extent possible. To the extent any additional records are in existence, but not in the claims file, the Veteran is advised that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran was not responsive to VA's attempt to schedule appointments and was not responsive to the RO's request for authorization and information to obtain additional records, the Board shall move forward to decide these appeals on their merits based upon the evidence currently of record. INCREASED RATING Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Traumatic Brain Injury (TBI) As noted above, the issue before the Board is whether an initial compensable rating prior to July 19, 2016, and a rating in excess of 10 percent thereafter, is warranted for the Veteran's TBI. The Board observes that the Veteran indicated a belief that a 30 percent rating is warranted for his TBI on his April 2015 notice of disagreement (NOD) form. Following the Board's prior remand, and review of the May 2, 2019 report referenced in that remand, which was a VA examination related to the Veteran's headaches, the RO issued a rating decision in March 2019. This rating decision allowed a 50 percent rating for the Veteran's separately rated headaches from September 16, 2016, forward. The headache rating is not before the Board. The question on appeal relates to the appropriate rating for the Veteran's underlying TBI, which is rated under DC 8045. 38 C.F.R. § 4.124a. 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. Again, the Veteran is separately service connected for his headaches, and also is service connected for his psychiatric disorder, the rating for which is discussed below. Also shown and separately service connected is the Veteran's tinnitus. 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. Symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated 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. They are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" whether or not they are part of cognitive impairment. However, a rater is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, 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. Emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate Diagnostic Code: motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed above that are reported on an examination, evaluate under the most appropriate Diagnostic Code. 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 need for special monthly compensation is considered for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. 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," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 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 diagnostic code. 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 a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. 38 C.F.R. § 4.124(a). The Veteran was initially evaluated for TBI in April 2015. The examiner confirmed there were no complaints of impairment of memory, attention, concentration, or executive function. Judgment, social interaction, orientation, motor activity, and visual spatial orientation were all deemed normal. The examiner confirmed the presence of headaches, insomnia, and sensitivity to light. Neurobehavioral effects were listed as being irritable and angry. The Veteran's communication and consciousness were both noted as being normal. The examiner confirmed there were no other pertinent physical findings. The examiner confirmed that the Veteran's headaches are the only residual from his history of mild TBI. In December 2015, the Veteran reported that he was experiencing migraines everyday and also felt he had memory loss, issues with concentration, irritability and sensitivity to light. He also reported issues with sleeping and horrible anxiety. The RO then issued a rating decision in March 2016 and increased the migraine headache rating to 30 percent based upon this statement. In July 2016, the Veteran again underwent an examination to specifically assess his TBI. At this time, the Veteran reported his health generally becoming worse in the prior year, both physically and mentally. He again reported mild memory loss in that he is forgetful of conversations, names, and chores to do. The examiner suggested that this is not related to his TBI. Later in the report, the examiner explained that people who experience mild TBI sometimes have impairment of working memory with in the first week after the TBI, which disappears over time, but that later experiencing forgetfulness is not likely related to TBI. The Veteran's judgment, social interaction, orientation, and motor activity were all noted as normal. The examiner confirmed the Veteran's subjective symptoms include his headaches, tinnitus, and insomnia. The examiner also confirmed there are no neurobehavioral effects, no communication impairment and normal consciousness. The RO then issued the July 2016 rating decision and awarded a 10 percent rating for the Veteran's TBI effective the date of this examination. The Veteran was again examined in September 2016. He reported that his symptoms had not increased since the July 2016 examination, but he felt he was not well represented at the time of the earlier examination. At his Board hearing, the Veteran confirmed that he felt the July 2016 examiner had discounted his memory impairment and wrongfully referred to it has "forgetfulness." He again reported that he has memory problems and headaches. He reported that his memory is "choppy" and that his short-term memory is "horrible." He reported forgetting what conversations are about in the middle of the conversation, and also sometimes forgets things he has done. He reported that others tell him that they always need to remind him of things. He also reported misplacing things. This examiner characterized the Veteran's judgment as mildly impaired as the Veteran reported that he occasionally has difficulty making decisions. The Veteran's social interaction, orientation, and motor activity were all deemed normal. Communication and consciousness were also deemed normal. The examiner indicated there were three or more subjective symptoms that mildly interfere with work, activities of daily living, or work, family or other relationships. In particular, the Veteran reported having daily headaches lasting for several hours during which he is able to function (such as to drive), but that cause him considerable discomfort, and hypersensitivity to light and sound. The Veteran reported also experiencing frequent insomnia, followed by periods of exhaustion and sleep. He reported that these symptoms do not interfere with his activities of daily living or his relationships, but he reported he is unable to work due to his headaches, PTSD and anxiety symptoms. The examiner also indicated there is one or more neurobehavioral effects that do not interfere with workplace or social interaction. In particular, he reported problems with aggression and that he is very irritable. He reported becoming so angry that he wants to break something, but that he can control this and is able to walk away before acting on these impulses. The examiner noted that it is impossible to determine if these symptoms are due to the Veteran's TBI, his PTSD, or a combination of both. The examiner confirmed that the only subjective symptoms experienced by the Veteran are his headaches and that there are no other pertinent physical findings. As for functional impact, the Veteran reported he is not working due to his headaches and also because of anger problems at work. He also indicated his memory impairment makes it difficult for him to remember instructions at work. The Veteran's clinical records throughout the pendency of the claim were reviewed and the findings are consistent with what is shown in the VA examination reports and the Veteran's testimony. The Board finds the Veteran's TBI is manifested by headaches and a report of mild memory impairment. The Veteran's other psychiatric symptoms have largely been attributed to his service-connected PTSD, which is discussed below. Reading the record in the light most favorable to the Veteran, the Board finds the Veteran's TBI to be manifested by complaints of mild memory loss, including having difficulty following a conversations, difficulty finding words, and difficulty concentration, which equates to a level 1 impairment in the area of memory, attention, concentration, executive functions. The Board also recognizes the Veteran is service-connected for tinnitus and experiences a moderate level of headaches and also frequent insomnia, which equates to a level 1 impairment in the area of subjective symptoms. In these circumstances, with no facet having greater than level 1 impairment, a basis to assign a rating in excess of 10 percent has not been presented. 38 C.F.R. § 4.124a, Diagnostic Code 8045. However, the Board finds that this level of disability has been present throughout the pendency of this claim; thus, the 10 percent rating should be assigned for the entire initial rating period. To this extent only, the appeal is granted. As to the claim for a rating in excess of 10 percent for TBI, this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim in this regard, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). PTSD As noted above, the Veteran's is rated for PTSD at the 30 percent rating prior to November 2, 2015 and between January 1, 2016 to September 14, 2016, and rated as 70 percent from September 15, 2016 to the present. The Veteran contends that his PTSD rating should be higher throughout the appeal period. The Board observes the Veteran, on his August 2015 NOD form, indicated his belief that a 50 percent rating is warranted for PTSD. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to September 15, 2016 (other than the temporary total evaluation period), or for a disability rating of 100 percent after September 15, 2016. The 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Board has reviewed the Veteran's clinical records, VA examination reports, statements, and hearing testimony in order to determine the appropriate rating throughout this claim period. A January 2014 mental health evaluation related to a Veterans Court Diversion Program shows the Veteran's history since childhood. This report suggests the Veteran was diagnosed with ADHD as an adolescent and struggled with concentration issues as a result. At the time of this evaluation, the Veteran reported working as a car salesman and also going to school. The Veteran reported an increase in concentration difficulties while deployed during his active service and also indicated ongoing issues with concentration and ADHD after service. The clinician summarized the Veteran's symptoms as including concentration deficits, irritability and "stress related to his busy schedule." The clinician confirmed that there was no history of suicidal ideation, gestures or attempts, and no history of hallucinations. Testing reveals memory intact, cognition adequate, verbalization normal, affect constricted, and reality testing grounded. Testing also revealed mild mood disturbance paired with mild levels of generalized anxiety. The clinician indicted the Veteran's low-level irritability and anger with feelings of dread are consistent with mild generalized anxiety. The Veteran was then afforded a VA examination related to his PTSD in April 2015. By this time he had left his job in car sales. He reported holding a subsequent job for five months, then having taken another job three months prior to the examination. He was working full time at the time of this examination. The Veteran reported he currently took medication for help with his sleep and also medication for his ADHD. The examiner noted the Veteran appeared to the examination with good grooming and hygiene, and normal speech. The Veteran denied suicidal and homicidal ideation and the examiner indicated there was no evidence of delusions. The Veteran reported that he gets very high anxiety when he goes into public, so he does not go out. He reported that he used to get angry, but that he now is emotionally disconnected and avoids people in order to avoid having difficulties with irritability and anger. He also reported feeling depressed all of the time. He reported having no interest in activities and no hobbies. The Veteran reported difficulty with sleeping, sometimes getting one hour of sleep, sometimes five. He reported that he no longer has nightmares, but that he lays awake for long periods of time. The Veteran confirmed that he does not have suicidal ideas, attributing this to having a child. The examiner summarized the Veteran's symptoms as depressed mood, anxiety, and chronic sleep impairment. Based upon these symptoms, the examiner concluded the Veteran's PTSD is manifested by 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. With regard to the TBI residuals and the PTSD symptoms, this examiner noted the Veteran's TBI symptoms as including headaches according to an April 2015 TBI examination, and also noted that PTSD symptoms do not include headaches. The examiner concluded that the Veteran's headaches are related to his TBI, and his psychological symptoms are related to his PTSD, not his TBI. In December 2015, the Veteran submitted a statement indicating he continues to struggle with memory loss, concentration issues, being irritable and having anxiety and trouble sleeping at night. He reported these symptoms make it hard for him to deal with people. The Veteran then underwent another VA PTSD examination in July 2016. At this time, he reported the following symptoms: aggressiveness and anger outbursts; sleep disturbance with nightmares and related fatigue; trouble recalling combat events; trouble with concentration and attention; hypervigilant thoughts and behaviors; exaggerated startle response; marital and family distress; interpersonal conflicts; and avoidance of stimuli associated with his combat experiences. The Veteran reported a strained relationship with his wife and continued to deny having any hobbies or interests. He reported not liking to be around people, so he does nothing but sit at home. He reported feeling angry all of the time. The Veteran reported that he remained with the job he had at time of the April 2015 examination for approximately six months, but then left the job when he entered treatment for his PTSD/substance abuse disorder. He reported not working since the time of that hospitalization. The Veteran's depressed mood, anxiety and chronic sleep impairment were again recognized by the examiner. Thoughts processes and communication were normal, and the Veteran again denied delusions, hallucinations, or suicidal or homicidal ideation. The examiner noted that the Veteran appeared able to maintain personal hygiene and basic activities of daily living. The Veteran was well-oriented to all spheres and the examiner noted that his short and long term memory appeared to be without gross deficits. In August 2016, a private counselor submitted a statement and a disability benefits questionnaire (DBQ) in support of the Veteran's appeal. This clinician noted treatment of the Veteran since August 2014. This clinician noted the Veteran's condition has caused significant social and occupational disruption and that he has been unable to maintain long term employment. This report suggested the Veteran experiences panic attacks on a weekly basis, has diminished sleep and has difficulty with focus and concentration, as well as forgetfulness. The clinician suggested that the Veteran has experienced periodic increased stability, but that he has not experienced such to maintain sufficient and continued social and occupational functioning. This clinician suggested the appropriate diagnoses are PTSD and generalized anxiety disorder. This clinician also suggested the Veteran's PTSD symptoms cause total and social impairment. In particular, the clinician noted the Veteran's difficulty focusing, lack of sleep, anxiety, panic and limited social interaction cause this level of impairment, and suggested that these are combined effects of PTSD, generalized anxiety and TBI. The Veteran was then again afforded a VA examination in September 2016. At this time, the examiner confirmed an additional diagnosis of bipolar disorder and suggested the Veteran was currently in a manic episode with an inability to sleep and irritability. The Veteran reported that he is unable to do many things since he has not slept for many days. He reported he constantly skips a few days sleeping at a time. He also reported being angry all the time and trusting no one. The examiner explained that symptoms of bipolar disorder, PTSD and TBI overlap and it is not possible to differentiate between them. The examiner noted that the symptoms do augment each other and cause the Veteran to feel worse in that he may feel more frustrated and isolated. This examiner suggested there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning normally, with normal routine behavior, self-care, and conversations. However, the examiner recognized the following symptoms as present: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly, near-continuous panic or depression affecting his ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, inability to establish and maintain effective relationships, obsessional rituals that interfere with routine activities, impaired impulse control such as unprovoked irritability with periods of violence, and grossly inappropriate behavior. The Veteran did have normal appearance and was oriented to person, place, time, and situation. There was no evidence of delusions or hallucinations and speech was normal. Judgment and insight were noted to be fair to poor. The Veteran's PTSD rating was increased to 70 percent effective the date of this examination. The Veteran was then examined again in October 2017. This examiner characterized the Veteran's diagnoses as PTSD, Major Depressive Disorder, and Panic Disorder. The examiner confirmed that there is a clinical association between these diagnoses and the symptoms include hypervigilance, exaggerated startle response, irritability, sleep disturbances, social isolation, fatigue, lack of concentration/motivation/drive, depressed mood, loss of interests, fluctuating appetite/weight, passive suicidal thoughts, sense of helplessness/hopelessness, and the panic attacks. The examiner confirmed that the Veteran's panic attacks occurred more than once per week. The Veteran reported a history of passive suicidal thoughts, but no current suicidal or homicidal ideation or hallucinations. This examiner characterized the Veteran's level of disability as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This is consistent with the 70 percent rating assigned for this time period. This examiner also found it impossible to differentiate between the symptoms of the various diagnoses, other than noting that the Veteran's headaches are attributable to his TBI and his psychological symptoms are related to his various psychiatric diagnoses and not related to his TBI. The Veteran was most recently examined for his mental disorders in January 2018, at which time the PTSD and bipolar disorder diagnoses were again confirmed. This examiner continued to note that there is no ability to differentiate between symptoms of the Veteran's psychiatric disorders. The examiner noted the Veteran's headaches to be attributable to his TBI, but his psychiatric symptoms were deemed related to his various psychiatric disorders. The Veteran continued to be noted as having emotional dysregulation, anger and irritability, impaired focus and concentration, and disrupted sleep patterns. The examiner indicated that these symptoms impair the Veteran's ability to appropriately and effectively manage stress and relationships. In sum, the VA examiners in this case have confirmed that the symptoms of the Veteran's variously diagnosed psychiatric disorders cannot be distinguished from one another, other than confirming that the headaches are associated with his service connected TBI and his psychiatric symptoms are not related to the TBI. When the signs and symptoms of a service-connected disability cannot be distinguished from those attributable to a non-service-connected condition, all signs and symptoms that cannot be distinguished must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). As such, the Board has considered all the psychiatric symptoms described in the record as associated with his service-connected PTSD. Prior to September 15, 2016, the VA and available private records, VA examination reports, and the Veteran's lay statements and hearing testimony show that his psychiatric disorders are manifested by chronic sleep impairment, generalized anxiety, depression, concentration deficits, irritability, anger, isolation, and weekly panic attacks. While a July 2016 private clinician's report suggested these symptoms amount to total occupational and social impairment, the Board finds these symptoms most closely approximate the criteria for a 30 percent rating. The Veteran's depressed mood, anxiety and weekly panic attacks are contemplated by the criteria for a 30 percent rating. The panic attacks were not noted to be more than once a week during this time period. Further, while memory impairment was reported by the Veteran, it was not described as involving retention of only highly learned material or forgetting to complete tasks prior to September 15, 2016. The Board recognizes that depression, irritability, and isolation could be likened to disturbances in motivation and mood and lead to difficulty in establishing and maintaining effective work and social relationships. Thus, some of the criteria for a 50 percent rating were present. However, the Board finds the severity, frequency, and duration of the Veteran's symptoms shown prior to September 15, 2016 more closely approximate the criteria for a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. While the Veteran did experience symptoms contemplated by a 50 percent rating the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. Further, for the period from September 15, 2016 to the present, the Veteran's symptoms markedly increased, but the Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by the currently assigned 70 percent rating assigned for this period, and are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The evidence does not show symptoms of total occupational and social impairment such as gross impairment of thought process 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 of time or place; memory loss for names of close relatives, own occupation, or own name. In fact, at no time do the records show that the Veteran experiences these or similar symptoms. The record did show the Veteran reported having a history of passive suicidal thoughts; however, there is no indication that it rose to the level of suicidal ideation similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Board, therefore, concludes that the severity, frequency, and duration of the Veteran's passive suicidal thoughts, and other symptoms, have not risen to the level contemplated by the 100 percent rating. Accordingly, this claim for a rating in excess of 30 percent prior to November 2, 2015 and between January 1, 2016 to September 14, 2016, and in excess of 70 percent from September 15, 2016 to the present, for the Veteran's service connected PTSD must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Finally, the Board recognizes several indications that the Veteran claimed to be not working since his release from the hospital due to his anger and concentration problems. The Board has considered whether the matter of a total disability rating based on individual unemployability (TDIU) has been raised as part and parcel of the increased rating claims on appeal. However, a review of the record reveals that the RO also considered this matter after the Veteran's release from the hospital. In October 2017, the RO sent the Veteran a letter recognizing that he may be eligible for a TDIU and informing him of the need for a standardized claim form. A VA Form 21-8940 was provided, and the Veteran was invited to return it in order for the RO to process a TDIU claim. The Veteran, however, did not respond and has not since suggested he wishes to raise the claim for a TDIU. Moreover, while the evidence shows the Veteran has struggled with holding jobs, the evidence does not establish or suggest that his disabilities have risen to the level of severity that he is unable to obtain and maintain substantially gainful employment because of them. The Board, therefore, finds the matter of a TDIU need not be considered further. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.