Citation Nr: 21041977 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 12-20 931 DATE: July 10, 2021 ORDER An increased disability rating in excess of 10 percent for TBI is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 14, 2013, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's TBI disability was manifested by no more than a level 1 for any facet of impairment. 2. Prior to September 14, 2013, the Veteran's combined service-connected disabilities did not prevent him from substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8045. 2. The criteria for a TDIU prior to September 14, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to April 2008. He also had periods of active duty for training (ACDUTRA) in June 2009 and October 2012, with additional service in the Army Reserve. The case is on appeal from an April 2011 rating decision. In January 2019, the Veteran testified at a Board hearing. Most recently, in January 2021, the Board granted an increase for migraine headaches and a partial increase for TBI. At that time, the Board remanded the claims remaining on appeal for additional consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An increased disability rating in excess of 10 percent for TBI. The Veteran is seeking a higher rating for his TBI symptoms. He filed a claim for increase in September 2010. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's disability has been assigned a disability rating under DC 8045 of 38 C.F.R. § 4.124a. The applicable rating schedule is set forth as follows: 8045 Residuals of traumatic brain injury (TBI): There are three main areas of dysfunction 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 a given individual, symptoms may fluctuate in severity from day to day. 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. 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, 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 Evaluate emotional/behavioral dysfunction under §4.130 (Schedule of ratingsmental 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 here 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 Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc Evaluation of Cognitive Impairment and Subjective Symptoms 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. Note (5): A veteran whose residuals of TBI are rated under a version of §4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. EVALUATION OF COGNITIVE IMPAIRMENT AND OTHER RESIDUALS OF TBI NOT OTHERWISE CLASSIFIED Facets of cognitive impairment and other residuals of TBI not otherwise classified Level of impairment Criteria Memory, attention, concentration, executive functions 0 No complaints of impairment of memory, attention, concentration, or executive functions. 1 A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. 2 Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. 3 Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Total Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Judgment 0 Normal. 1 Mildly impaired judgment. For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. 2 Moderately impaired judgment. For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. 3 Moderately severely impaired judgment. For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. Total Severely impaired judgment. For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Social interaction 0 Social interaction is routinely appropriate. 1 Social interaction is occasionally inappropriate. 2 Social interaction is frequently inappropriate. 3 Social interaction is inappropriate most or all of the time. Orientation 0 Always oriented to person, time, place, and situation. 1 Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. 2 Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation. 3 Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Total Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Motor activity (with intact motor and sensory system) 0 Motor activity normal. 1 Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). 2 Motor activity mildly decreased or with moderate slowing due to apraxia. 3 Motor activity moderately decreased due to apraxia. Total Motor activity severely decreased due to apraxia. Visual spatial orientation 0 Normal. 1 Mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system). 2 Moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS (global positioning system). 3 Moderately severely impaired. Gets lost even in familiar surroundings, unable to use assistive devices such as GPS (global positioning system). Total Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms 0 Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. 1 Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. 2 Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects 0 One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects. 1 One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. 2 One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. 3 One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Communication 0 Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. 1 Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. 2 Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. 3 Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs. Total Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Consciousness Total Persistently altered state of consciousness, such as vegetative state, minimally B. Discussion Regarding memory, attention, concentration, executive functions, a November 2010 VA examiner assigned a level 1 for this facet. A VA examiner in March 2018 identified no deficit related to this facet. A June 2019 VA examiner identified this facet as involving a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The examiner specified poor concentration and trouble remembering tasks and names. Based on this evidence, this facet is assigned a level 1 of impairment. Regarding judgment, orientation, visual spatial orientation, neurobehavioral effects, and communication, the November 2010 VA examiner and June 2019 VA examiners reported a level of impairment consistent with a level 0. The March 2018 VA examiner found communication and consciousness normal, and identified no impairment in these other facets. Regarding social interaction, the November 2010 VA examiner identified social functioning mildly to moderately impaired, with the Veteran sometimes dating women and going to restaurants and theaters. The examiner specified that this was relative to the arousal symptoms of posttraumatic stress disorder. The March 2018 VA examiner identified no impairment of social interaction. The June 2019 VA examiner found social interaction routinely appropriate. In light of this evidence, this facet must be assigned a 0 level of impairment. The November 2010 VA examiner identified an impairment in social interaction, but attributed this to the separately service-connected psychiatric disability. Thus, that impairment cannot be considered here. Mittleider v. West, 11 Vet. App. 181 (1998). Regarding motor activity and consciousness, the November 2010 VA examiner (in the headache portion of the examination), the March 2018 VA examiner, and the June 2019 VA examiner all gave findings consistent with a level 0. Regarding subjective symptoms, the November 2010 VA examiner graded the impairment as a level 1 involving three or more subjective symptoms that mildly interfered with work, etc., including vertigo, daily mild to moderate headaches, tinnitus, and hypersensitivity to light. The March 2018 VA examiner also identified subjective symptoms involving headaches known to interfere with work attendance in the past. The June 2019 VA examiner described subjective symptoms involving headaches that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. The Board observes that the symptoms described correspond at most to a level 1 of impairment. Importantly, the Veteran is separately service-connected for each of the symptoms identified except vertigo (hypersensitivity to light is a symptom of headaches. See 3/19/2018 VA examination). Hence, the other symptomsheadaches, tinnitus and hypersensitivity to lightmay not be assessed under this facet. See 38 C.F.R. § 4.124a, DC 8045 (evaluate each residual condition separately, as long as the same signs and symptoms are not used to support more than one evaluation); Mittleider, 11 Vet. App. at 182. Of final note, the Veteran underwent an extensive neuropsychiatric evaluation for his TBI at VA in October 2012. The evaluator identified multiple specific findings, which were summarized as a deficit in sustained attention and confrontation naming; some weaknesses in aspects of executive functioning, including planning and organization of a complex geometric figure, which impacted his construction of that figure; no evidence of visuospatial or visuoconstructional deficits; verbal fluency, problem solving, and multitasking all were in the low average range, which may reflect general executive functioning weaknesses; and learning and memory scores intact. The evaluator did not correlate these findings with the rating schedule, and the Board finds that doing so is outside its capacity as this would be a medical determination. Fountain v. McDonald, 27 Vet. App. 258, 273, 274-75 (2015) (the Board must cite independent medical evidence to corroborate any finding regarding a medical question that is not the type for which lay evidence is competent). However, the only deficits identified were in sustained concentration, confrontation naming, and executive functioning, consistent with the above findings. Also significant, the evaluator concluded that given the Veteran's report and the natural course of a mild TBI such as his, it is likely that the inefficiencies in cognition observed at the evaluation were more consistent with the ongoing symptoms/problems involving emotional distress, sleep problems, and chronic headaches and other pain, rather than the sole result of a concussive injury. Hence, this assessment appears consistent with the level 1 impairment identified by the VA examiners. Overall, the highest level of impairment in any facet was the level 1 for memory, attention, concentration, executive functions, and the level 1 for subjective symptoms. A level 1 corresponds to a 10 percent rating. See 38 C.F.R. § 4.124a, DC 8045. At his January 2019 Board hearing, the Veteran complained of speech patterns that had gotten worse, and his ability to concentrate was not what it used to be. Board Hr'g Tr. 11-12. He also described sleep problems and memory difficulties as the main focus of his symptoms. Board Hr'g Tr. 13. It is generally within the competence of a lay person to identify and observe the effects of a disability under the ordinary conditions of daily life. Moreover, the Veteran's TBI condition manifests with some symptoms readily observable by a lay person, such as memory problems. Accordingly, the lay evidence is competent evidence to this extent. However, the rating schedule for evaluating TBI requires complex medical findings, including what symptoms are attributable to which of his interrelated medical disabilities. It does not appear that the Veteran has a background in medicine, or a related field, such that he can be recognized as having the medical expertise needed to make such medical findings. Accordingly, his testimony is useful in understanding those symptoms he is competent to identify and the effect of the disability on his daily life, but does not provide a basis for assigning a higher rating. In sum, the preponderance of the evidence is against a higher rating for TBI. As such, the benefit-of-the doubt doctrine is not applicable, and a rating in excess of 10 percent is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A TDIU prior to September 14, 2013. The period on appeal begins from September 29, 2010, as the TDIU issue arises from claims for increased ratings for service-connected disabilities beginning from that date. The Veteran has already been assigned a TDIU effective from September 14, 2013. Thus, the appeal period ends on that date. In his November 2014 TDIU application (VA Form 21-8940), the Veteran identified last working full-time in September 2013. He identified the service-connected disabilities preventing him from securing or following any substantial gainful employment as posttraumatic stress disorder (PTSD), tinnitus, lower back, left knee, TBI, and migraines. He wrote that he last worked in security and left this job because of his disability. He had not tried to obtain employment since becoming too disabled to work. He had a high school education. He wrote that he tried going to school, but kept failing and putting himself into more debt. At his January 2019 Board hearing, the Veteran contended that a TDIU should be considered even earlier than September 14, 2013. Board Hr'g Tr. 8. The Veteran testified that he had worked for over a dozen security companies and had attended four different schools over the prior 10 years. Board Hr'g Tr. 5. He stated that the longest time he had worked for any one company was six months. Board Hr'g Tr. 5. He reported having better success maintaining his duties when working a night shift, and he stayed longer if there was less supervision. Board Hr'g Tr. 6. But, he felt that it did not take long for his employers to hold his disabilities against him. Board Hr'g Tr. 6. His representative argued that the pay at his jobs prior to September 2013 was "very marginal." Board Hr'g Tr. 8. In a February 2019 written statement, the Veteran wrote that he had not done well in school unless the class was easy or the professor was easy, and he had no education to speak of suitable to survive. He attributed this to a "serious lack of capability and mental cognition." Regarding his work history, he identified the "trend" as obtaining a job and holding onto it for as long as possible until things did not work out for service-connected reasons. He also wrote that he had an ongoing issue with being able to attend VA appointments due to employer resistance. In a November 2020 statement, the Veteran wrote that the only reason he worked was so that his family would not be homeless. His wife gave a similar account of his work history in a November 2020 written statement. During the time period prior to September 14, 2013, Veteran was service connected for (1) PTSD; (2) migraine headaches; (3) bilateral tinnitus; (4) TBI; (5) lumbar strain with spondylosis; (6) left knee strain; and (7) tympanic membrane rupture of the right ear. A. Applicable Law Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's 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. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). B. Discussion The Veteran's representative argued at the Board hearing that his employment prior to September 14, 2013, was "very marginal" as he worked in security positions where the pay was low. Board Hr'g Tr. 8. The Veteran explained that this line of work was "not a very lucrative one." Board Hr'g Tr. 6. Notwithstanding these contentions, the Veteran reported on his TDIU application that he earned $2,100 per month at his last full-time security position. He listed this job as 40 hours per week from October 2012 to September 2013. This was a period of approximately 11 months. This conflicts with his testimony that the longest time he remained at any company was six months. He also remained in the Reserve through October 2012, when he was medically discharged. The claims file reveals other inconsistencies in his work history. He indicated that he found school too difficult to complete due to a "a serious lack of capability and mental cognition." Yet, he had earlier reported at a November 2010 VA examination that he withdrew from school because he wanted to receive full unemployment benefits. Likewise, he reported at a different November 2010 VA examination that he went to a business school for some credits and then switched to a community college, but had to withdraw because of financial reasons. He specified that "[t]hey would not let him attend school if he was collecting unemployment." He reported completing three classes, getting two A's and a B. He submitted school transcripts showing A's and B's, but also D's and F's or withdrawals. In September 2018, he reported working on a Bachelor's degree, and he stated "school is easy." A VA examiner in March 2018 pointed out this inconsistency. This same examiner observed the Veteran's report of leaving a prior employer because he wanted pursue school, but also that the employer wanted armed security, and the Veteran did not want to be armed. The Veteran had also stated in support of his claim that he left all prior jobs because of issues related to his service-connected disabilities. Yet, he reported at a March 2018 VA examination that he was fired for car trouble, and it was also noted that a statement from this employer said he was sleeping through shifts. The file contains other indications that the Veteran is not a reliable historian. A supervisor at his Reserve unit contacted his VA Medical Center in October 2009 and noted that the Veteran had been telling his master sergeant he had been attending appointments but in reality he had been missing many of the appointments arranged for him. In January 2010, this same Reserve supervisor advised that the Veteran was having problems with memory, functioning, "and honesty." At an August 2012 VA examination, the Veteran described a legal issue where he had been helping a woman start a business while at business school, and was in charge of writing the business plan and model. He was promised a salary, waited a month, was never paid, so told her that she needed to pay him or he would take everything with him. She ended up filing charges against him, and called the police, and stated he had acted in a menacing manner toward her, and obstruction of telephone. Both charges were false, the Veteran claimed. The menacing charge was dropped, but the obstruction of telephone remained, and he was arrested and in jail for three days, in March, 2010. He was still on probation for this at the time of the August 2012 VA examination, and he met with a probation officer every two to three months, although was almost off probation by that time. At the March 2018 VA PTSD examination, the Veteran denied a legal history; when confronted with the information from the August 2012 VA examination, he stated that he forgot about it. Finally, he underwent an extensive neuropsychiatric evaluation at VA in October 2012. Objective testing showed performance on one task of response bias (administered at the beginning of the evaluation) suggestive of an exaggeration of symptoms. A November 2010 VA examiner also found some indication that the Veteran may have a history of not always being compliant or reliable. These examples are representative of other instances in the file tending to indicate that the Veteran is not a credible or reliable historian, especially as it concerns his work and educational history. Thus, his own report prior to September 14, 2013, is not considered probative absent corroborating information. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness) To this end, his last full-time employer submitted a VA Form 21-4192, Request for Employment Information, in November 2014. It states that he last worked September 13, 2013, with a beginning date of employment in October 2012. He had worked full-time, 8 hours daily and 40 hours weekly. Multiple concessions had been made by reason of his disability, including limited contact with others and allowing most work hours to be at a desk. He had voluntarily quit with the reasons given including physical, emotion, and mental stress. This same employer wrote an accompanying statement in November 2014 indicating that the Veteran was a "broken individual, both physically and mentally." It went on to state that he could not stand for long periods, had an inability to focus, and had a confrontational attitude. The employer indicated that they had worked with the Veteran for as long as they could, but eventually the Veteran deemed it necessary he leave work. The employer stated that they would be "hard pressed to imagine [the Veteran] in any workplace environment." Overall, this record contains some favorable evidence indicating that the Veteran had difficulty maintaining a substantially gainful occupation prior to September 14, 2013. First, his representative argued that his employment during this time period was "very marginal." To the contrary, his pay, as he reported, was greater than the poverty threshold. He identified making $2,100 per month, which would equal $25,000 per year. The poverty threshold in 2013 was $12,119. Thus, the Veteran's employment was substantially gainful. A TDIU cannot be assigned where the Veteran's employment was more than marginal unless the work was in a protected environment. The former employer's November 2014 statement indicates that they "worked with" the Veteran for as long as they could. This raises the question of whether this was a protected work environment. The employer wrote that they "hired a doorman so he could focus on deskwork," but this did not solve the problem. The employer did not indicate that this, or any other accomodation, amounted to a loss in order to maintain the Veteran's employment. See Cantrell v. Shulkin, 28 Vet. App. 382, 391 (2017). Rather, these accommodations appears entirely consistent with reasonable accommodations under the Americans with Disabilities Act (ADA). Such accommodations preclude a finding that this was a protected work environment. See id. at 392. Otherwise, it appears true that the Veteran had a series of jobs prior to September 14, 2013. However, he remained able to secure and follow a substantially gainful occupation until granted TDIU effective September 14, 2013. His pay may not have been "lucrative," but it was more than marginal as defined in 38 C.F.R. § 4.16(a), his representative's argument to the contrary notwithstanding. His work was not in a protected environment. The fact that he had a series of jobs does not mean his work was marginal. As such, the preponderance of the evidence is against the claim. Thus, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.