Citation Nr: 22016343 Decision Date: 03/22/22 Archive Date: 03/21/22 DOCKET NO. 18-28 314 DATE: March 22, 2022 ORDER Entitlement to a 10 percent rating, but no higher, prior to April 1, 2017, for service-connected migraine headaches is granted. Entitlement to a rating of 30 percent disabling, but no higher, for service-connected migraine headaches is granted effective April 1, 2017. Entitlement to a rating in excess of 30 percent for any time period on or after April 1, 2017, for service-connected migraine headaches is denied. Entitlement to a rating in excess of 50 percent disabling prior to November 10, 2021, for service-connected posttraumatic stress disorder (PTSD), previously rated as dysthymic disorder, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 11, 2017 is denied. FINDINGS OF FACT 1. During the appeal period prior to April 1, 2017, the Veteran's service-connected migraine headaches most closely approximated migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. His migraines did not manifest in characteristic prostrating attacks averaging more than once a month or more over the last several months. 2. It is first factually ascertainable as of April 1, 2017, that the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month or more over the last several months. His migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time on or after April 1, 2017, throughout the remainder of the appeal period. 3. The severity, frequency, and duration of the Veteran's mental health symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas at any time period on appeal prior to November 10, 2021. 4. The Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation prior to July 11, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating, but no higher, prior to April 1, 2017, for service-connected migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a rating of 30 percent, but no higher, for service-connected migraine headaches were met as of April 1, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria for entitlement to a rating in excess of 30 percent on or after April 1, 2017, for service-connected migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 4. The criteria for entitlement to a rating in excess of 50 percent disabling prior to November 10, 2021, for service-connected PTSD, previously rated as dysthymic disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 5. The criteria for entitlement to a TDIU prior to July 11, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2011 to May 2013. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual April 2021 Board Hearing. The claims file contains a transcript of the hearing. In a June 2021 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions with respect to the above-listed claims, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Importantly, after the development requested in the June 2021 Board Remand, the RO readjudicated the claims and granted each of them in part. Therefore, the increased rating claims for migraines and dysthymic disorder (now diagnosed as PTSD) have been recharacterized to reflect the grants of increased ratings for portions of the period on appeal. In addition, the RO granted TDIU effective July 11, 2017, but the grant of a TDIU constituted only a partial grant of the claim, so the issue of entitlement to a TDIU prior to July 11, 2017, remains on appeal. Harper v. Wilkie, 30 Vet. App. 356, 359 (2018) ("[The Veteran] did not need to appeal the . . . RO decision [granting TDIU and assigning an effective date] because the issue of entitlement to TDIU became part and parcel of the underlying [increased rating] claim and the RO's grant of TDIU [for a portion of the period on appeal] served only as a partial grant of his request for TDIU."). The Board notes that there are also two separate appeals streams involving entitlement to service connection for a lumbar spine disability: one a separate appeal in the legacy system and also an appeal in the modernized review system, also known as the Appeals Modernization Act (AMA). Therefore, the Veteran should understand that, although the Board will not address the claim in this decision, there are pending appeals that will be addressed in later decisions if and when appropriate. The record contains evidence not yet considered by the agency of original jurisdiction (AOJ); however, the evidence pertains to the Veteran's lumbar spine disability and/or is otherwise not pertinent to the claims currently before the Board. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c). Increased Rating 1. Entitlement to a compensable rating prior to November 5, 2021, and to a rating in excess of 30 percent thereafter, for service-connected migraine headaches The Veteran contends that he is entitled to a higher rating including because the migraine headaches have worsened since the most recent examination and resulted in interference with employment (e.g., leaving work early, calling in late) "several times a year" since 2013 up until he last worked in 2017. See April 2021 Board Hearing Tr. at 7-9. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 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). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Facts and Medical Evidence During his active service, the Veteran complained of headaches. He underwent a VA examination prior to his May 2013 discharge from active service that evaluated his headaches. See August 2012 VA Examination. The examiner noted a diagnosis of headaches since 2011 and noted a six hour admission due to his first severe headache attack in August 2011. Thereafter, the Veteran continued to experience headaches which included pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity. The Veteran also experienced non-headache symptoms including nausea, vomiting, sensitivity to light, changes in vision, and sensory changes. The head pain typically lasted less than one day and was on both sides of the head. The Veteran did have characteristic prostrating attacks of migraine headache pain which occurred less than once every two months. He did not have very frequent prostrating and prolonged attacks of migraine headache pain or non-migraine headache pain. He averaged less than one prostrating attack of non-migraine headache pain every two months. The examiner opined that the Veteran's headache condition did not impact his ability to work. A December 2012 VA Primary Care Note indicates migraine headaches "at least 2 times a [week]." Another December 2012 VA Primary Care Note indicates migraines two to three times per week lasting two to three hours per event. An April 2014 VA examination also diagnosed migraine headaches and documented the Veteran's report of bilateral, global, pulsating pain lasting two hours daily and accompanied by sensitivity to sound and light, but without nausea or vomiting. The examiner noted pulsating or throbbing head pain on both sides of the head with pain that worsens with physical activity. The Veteran also had non-headache symptoms of sensitivity to light and sensitivity to sound. The head pain typically lasted less than one day and was on both sides of the head. The Veteran did not have characteristic prostrating attacks of migraine headache pain. The examiner opined that the Veteran's headache condition did not impact his ability to work. The May 2014 Medical Evaluation Board (MEB) Narrative Summary noted: [The Veteran] began having headaches in 2011. Pain was global, bilateral, pulsating, lasting 2 hours, occurring daily. Sensitivity to sound and light. [The Veteran] checked (no) to 'characteristic prostrating attacks of migraine. Non-migraine headaches ?' CT of the brain, 08/12/2014 was normal. [The Veteran] also checked (no) to "Does the veteran's headache condition impact his ability to work?" The MEB otherwise concluded that the migraines were "medically acceptable" for retention. An October 2015 VA Primary Care Note documents the Veteran's report of three to five migraines per week lasting about eight hours. VA and private treatment records thereafter are largely silent for descriptions of the severity of the Veteran's headaches. They do document several attempts to try different medications. See, e.g., June 2017 VA Medication Note ("Migraine disorder - works as delivery manager for Snap-on-Tools 14 hour days and has trouble with fatigue related to Imitrex."). The Veteran did keep a headache journal in 2017 and 2018. In April 2017, the Veteran had eleven (11) headaches lasting from one (1) to four (4) hours. See 2017 Headache Journal (not indicating severity). In May 2017, he had eleven (11) headaches lasting from one (1) to six (6) hours. Id. In June 2017, he had eight (8) headaches lasting from one (1) to six (6) hours. Id. In July 2017 he had five (5) headaches lasting from one (1) to seven (7) hours. Id. In February 2018, the Veteran had five (5) headaches of which two were severe and three were moderate. See 2018 Headache Journal (the journal defines mild as "able to function", moderate as "unable to function, bed rest not needed", and severe as "bed rest required"). The severe headaches were characterized by light sensitivity, personality change, dizziness/vertigo, motor impairment, double vision, and other visual symptoms. Id. In March 2018, the Veteran documented five (5) headaches, one of which was severe, two were moderate, and two were mild. The November 2021 VA examination noted migraine headaches since 2011 and documented the Veteran's report of worsening symptoms which included constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain which worsens with physical activity. The examiner also noted non-headache symptoms including nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. Typical duration was less than one day involving both sides of the head. The Veteran had prostrating attacks of headache pain once every month, on average, but not very prostrating and prolonged attacks of migraine or non-migraine pain that was productive of severe economic inadaptability. The Veteran also reported disturbance of sleep from migraines. The examiner opined that the Veteran's headaches impact his ability to work due to severe pain and vision changes that affect his concentration. Analysis: Period Prior to April 1, 2017 The Board concludes that the Veteran's migraines occurred with less frequent attacks during the period prior to April 1, 2017. As noted above, while in-service evaluations indicated characteristic prostrating attacks of migraine and non-migraine headache pain accompanied by nausea, vomiting, sensitivity to light, vision changes, and sensory changes, the evaluations and medical records from discharge from active service through April 1, 2017, fail to document that the Veteran experienced characteristic prostrating attacks of headache pain. See, e.g., April 2014 VA examination; May 2014 MEB Narrative Summary. While the treatment records following the 2014 evaluations do document headaches up to five (5) times per week, they do not discuss the severity and the record does not support a finding that the headaches had worsened in severity from 2014 until 2017. The Veteran had the opportunity to undergo a VA examination during this period, but did not appear for the scheduled examination. See December 2015 Notice of Failure to Report to VA Exam. This fact does not weigh against the Veteran on the merits of the claim, but instead the Board will rate the Veteran's condition on the evidence that is of record for that period of time. 38 C.F.R. § 3.655. The failure to appear is also noteworthy to the extent the Veteran would argue that the absence of more detailed evaluations during this period is the fault of VA or should otherwise be weighed in his favor. 38 C.F.R. § 3.159(c)(ii); See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) ("Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim."); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's credibility is not at issue during this period as he has not provided any clear statements or testimony that indicate he did have prostrating attacks during this period more than once every two months. His testimony at the April 2021 Board Hearing, as the Board interprets it, related to more recent time periods when discussing the severity of the Veteran's headaches (migraine and non-migraine). Moreover, at his hearing, he testified that the condition had worsened over the years and the medical and documentary evidence subsequent to April 2017 indicate that the service-connected migraine headache condition had worsened. This further supports finding that the Veteran's symptoms in 2014 and 2015 were not as severe as those he began documenting as of April 1, 2017. Based primarily on the August 2012 VA examination, the April 2014 VA examination and the May 2014 Medical Evaluation Board (MEB) Narrative Summary and associated evaluations, the Board finds that, prior to April 1, 2017, the most persuasive evidence of record establishes that the Veteran's service-connected migraine headaches most closely approximated the 10 percent rating criteria: migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. As noted, the August 2012 VA examiner noted characteristic prostrating attacks of non-migraine pain less than once every two months and characteristic prostrating attacks of migraines less than one every two months. The precise frequency is not specified, but, combining the episodes of non-migraine headaches and migraine headaches resulting in characteristic prostrating attacks, the frequency and severity of the attacks more closely approximates one every two months. Accordingly, the Board concludes that the Veteran's migraine headaches most closely approximated migraines with characteristic prostrating attacks averaging one in 2 months over the last several months, corresponding to the criteria for a 10 percent rating under DC 8100. A 30 percent rating under DC 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging once per month over the last several months. Again, although the evidence does indicate headaches up to five (5) times weekly prior to April 1, 2017, the evidence regarding severity suggests that the headaches did not include characteristic prostrating attacks. The rating criteria specify migraines which includes symptoms other than headache pain (such as nausea, vomiting, and sensory disturbances). Holmes v. Wilkie, 33 Vet. App. 67, 72 (2020). Therefore, notwithstanding the Veteran's condition was characterized during this period by symptoms such as nausea, vomiting, and light sensitivity, the rating criteria include all those symptoms and are focused on the frequency, duration, severity, and economic impact of the attacks. Id. at 72. The focus of the rating criteria is the overall functional impairment, including impact on occupational functioning. The VA examinations and MEB evaluations indicate that the condition did not impact his ability to work. However, as discussed, the evidence most closely approximates one characteristic prostrating attack of non-migraine and/or migraine headache symptoms every two months during the period prior to April 1, 2017. Thus, the Board concludes that the Veteran's migraines did not occur with characteristic prostrating attacks averaging once per month over the last several months at any time during the portion of the appeal period prior to April 1, 2017. A 10 percent rating under DC 8100, but no higher rating, is warranted prior to April 1, 2017. Analysis: Period Beginning April 1, 2017 The Board concludes that the evidence is at least in equipoise that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months beginning April 1, 2017, corresponding to the criteria for a 30 percent rating under DC 8100. As noted above, the Veteran kept headache journals in 2017 and 2018. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The first entry is a headache on April 1, 2017. Although the 2017 entries do not discuss severity, the Board finds that given the relative closeness in time of the 2018 journal entries, which do describe the severity and symptoms, the April 2017 headaches were likely similar to those in 2018. This finding is further supported by the Veteran's Board hearing testimony and treatment records such as a June 2017 progress note that documents use of Imitrex to treat the headaches. The 2018 journal entries describe severe headaches occurring three (3) times in two months. The severe headaches as described in the journal's definition of terms and in the Veteran's description of symptoms would meet the criteria for characteristic prostrating attacks. In addition, the "moderate" headaches which occurred five (5) times in two months would arguably also meet the definition of characteristic prostrating attacks in that they rendered the Veteran (as he evaluated them) "unable to function," though not requiring bed rest. See Holmes, 33 Vet.App. at 70 (quoting Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018): "'Prostrating' means 'lacking in vitality or will: powerless to rise: laid low."). Therefore, the headaches in February and March 2018 met the criteria for a 30 percent rating. As noted, the 2017 headache journal entries appear substantially similar to those in the 2018 headache journal, so the Board finds that it is first ascertainable from the record that the Veteran began experiencing characteristic prostrating attacks of more than one per month beginning April 1, 2017. The 2021 VA examination similarly documented characteristic prostrating attacks occurring once per month, but also found the Veteran did not experience very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Accordingly, the Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month or more throughout the period from April 1, 2017, through the remainder of the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The modifier "completely" as used before "prostrating" in the 50 percent criteria means that the Veteran must be rendered entirely powerless. See Holmes, 33 Vet.App. at 70 (citing Johnson, 30 Vet.App. at 252). As the discussion of the evidence above reveals, the medical opinions and evaluations of record are wholly against finding that the Veteran had very frequent, completely prostrating and prolonged attacks, much less such attacks that either produced or were capable of producing severe economic inadaptability. The Veteran's headache journals did not document very frequent attacks that were completely prostrating. Rather, the "severe" headaches" noted in 2018 were not "very frequent", but occurred at the rate of roughly one or two per month. The medical opinions from 2012, 2014, and 2021 all indicate that the Veteran did not experience completely prostrating attacks that were productive of severe economic inadaptability. Thus, the Board concludes that the Veteran did not have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the appeal period. A higher 50 percent rating is not warranted under DC 8100. Conclusion Entitlement to a 10 percent rating for service-connected migraines is granted for the period prior to April 1, 2017. The evidence is not in approximate balance, but is persuasively against awarding a rating higher than 10 percent for the Veteran's migraine headaches prior to April 1, 2017. Any reasonable doubt has been resolved in favor of the Veteran. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Giving the Veteran the benefit of every doubt, the evidence is in approximate balance regarding whether he experienced one or more characteristic prostrating attacks per month on and after April 1, 2017. Therefore, the Veteran is entitled to the benefit of the doubt. Entitlement to a rating of 30 percent, but no higher, for service-connected migraine headaches is granted effective April 1, 2017. 2. Entitlement to a rating in excess of 50 percent disabling prior to November 10, 2021, for service-connected PTSD previously rated as dysthymic disorder The Veteran contends that the symptoms and functional impairments caused by his service-connected acquired psychiatric disorder (previously diagnosed as dysthymic disorder, currently diagnosed as PTSD and hereinafter referred to as PTSD) are worse than reflected by the 50 percent rating in effect prior to November 10, 2021. See, e.g., April 2021 Board Hearing Tr. at 2-5. Importantly, upon readjudication, the RO granted a 100 percent rating for the service-connected PTSD effective November 10, 2021. See November 2021 Rating Decision. Therefore, the Veteran has the highest available rating for PTSD as of November 10, 2021, and the appeal is fully satisfied with respect to that time period. Therefore, the Board will only consider the appropriate rating for the period prior to November 10, 2021. 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 70 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA and private treatment records, the July 2012 VA examination, the April 2014 VA examination (with an April 2014 VA examiner's addendum), the May 2014 MEB Behavioral Health Addendum, and the Veteran's lay statement show that his PTSD was manifested by symptoms associated with a 50 percent rating (e.g., flattened affect, disturbances in motivation and mood), and symptoms associated with a 70 percent rating (e.g., impaired impulse control (such as unprovoked irritability with periods of violence)). He also had symptoms that are not listed with a specific rating, such as poor appetite and low frustration tolerance. The symptoms were consistent, in terms of type and severity, with those listed in the 50 percent criteria. The Board notes that while the Veteran had symptoms similar to "impaired impulse control (such as unprovoked irritability with periods of violence)", the 2014 VA examiner actually described the Veteran's impulse control as "fair" which the Board interprets as less severe than the 70 percent rating criteria indicates. While the 2014 VA examiner indicated "yes" for episodes of violence, the only episodes of actual violence described in his report, or any report, were fights in high school or, apparently, during his military service. Otherwise, the documentation in the 2012 and 2014 VA examinations, treatment notes, and in the September 2017 Mental Disorders DBQ completed by a private psychologist (with accompanying August 2017 Mental Status Examination) all discuss angry outbursts and confrontational behavior, a quick temper, or anger management issues, but not actual violence. The 2014 VA examiner, for example, elaborated on the "fair" impulse control and episodes of violence with: "anger outbursts several times weekly, confrontive behavior when frustrated, argues with spouse daily." The Board interprets this as suggesting clinically significant impairment of impulse control, but not the "periods of violence" suggested by the 70 percent criteria. In later comments, the 2014 VA examiner further noted "anger outbursts and confrontational behavior and arguments with spouse, without domestic violence reports/legal action or marital separations." Moreover, the overall assessment by the 2014 VA examiner was that the Veteran's symptoms, including the impaired impulse control with "episodes of violence," resulted in reduced reliability and productivity but that he was able to manage "social relationships with mild impact from mood [symptoms.]" The examiner explicitly opined that the symptoms did not result in deficiencies in the areas of judgment, thinking, family relations, work, mood, or school. In short, the only symptom exhibited by the Veteran which is similar to one listed in the 70 percent criteria was not of same severity as that contemplated by the 70 percent criteria and, as importantly, did not result in the overall level of impairment contemplated by the 70 percent criteria. There is evidence suggesting the Veteran had more serious symptoms during this period which would meet the 70 percent criteria in terms of type and severity of symptoms as well as their overall impact on the Veteran's social and occupational functioning. Specifically, the record contains a September 2017 Mental Disorders DBQ and accompanying August 2017 Mental Status Examination completed by a private psychologist. The private psychologist's report, as he frankly acknowledges, is based on factual assumptions different from those found to exist by other mental health professionals. Importantly, the psychologist noted at the outset that his interview with the Veteran "was terse, reticent, hesitant, and frequently giving the least information possible." This implies several things, including that the psychologist was not able to get the same depth and accuracy of information as other examiners, particularly including the 2014 VA examiner. The private psychologist disagreed with the 2012 VA examiner's statement that the results of an MMPI "indicate over-reporting of symptoms and functional impairment. The symptom profile is invalid." The psychologist, who did not perform the test at issue and did not perform his own MMPI felt, based only on reading the VA examiner's report rather than actually interacting with the Veteran, that "the proper statement would be that of 'results indicate increased reporting symptoms' because he may actually have the symptoms. If he does, he is not over reporting." The Board gives more weight to the interpretation of the 2012 VA examiner, also a licensed clinical psychologist, which was based on a test she administered and interpreted along with her contemporaneous examination of the Veteran, rather than the private psychologist's interpretation on a cold record five years later. This is particularly so where the April 2014 VA examiner, also a licensed psychologist, reviewed the 2012 report and concluded that the "psychological testing showed over reported symptoms and functional impairment." Thereafter, the psychologist seems to find significant that the April 2014 VA examiner indicated the acquired psychiatric disorder was not yet service-connected, apparently attempting to imply inaccuracies. However, the Veteran was not service-connected for an acquired psychiatric disorder at the time of that exam, so it is the psychologist who made the mistake of fact. He then indicates that statements in the 2014 VA examination are "not the truth" because, in his view, they are inconsistent with statements in prior VA examinations. However, the language from the 2014 VA examination is that the Veteran "described relationships with his family of origin as close and supportive." The psychologist makes slight errors in the transcription of this statement and, apparently, finds this purported inaccuracy significant. However, the 2014 VA examiner was documenting the Veteran's reports at the time of an in-person examination and thereafter offered a professional opinion based on his interview with the Veteran and review of the record, whereas the private psychologist is drawing conclusions in this section from second-hand reports rather than his own interview with the Veteran which the Board takes as further confirmation (in addition to the psychologist's own characterization of his own interview) that he was unable to get a similar level of cooperation from the Veteran. The psychologist's unfounded criticism of the April 2014 VA examiner's documentation of the Veteran's description of his childhood undermines the persuasiveness of the psychologist's opinion both because it suggests some lack of objectivity in that it appears to actively seek opportunities to disagree with prior examiners and also because it indicates that the psychologist's opinion has an inaccurate factual basis. Oddly, the private psychologist also expressed frustration and disagreement with DSM-V: "The DSM-V in their infinite wisdom does not consider anger to be an emotion, that chronic anger state disorders aren't listed under mood problems." It appears the private psychologist was not applying the DSM-V according to its own terms, but making assessments according to his own idiosyncratic view of the appropriate diagnostic criteria. He also used sarcasm elsewhere in his report, raising a question as to his objectivity. His objectivity and faithful application of the DSM-V is further undermined in that he insisted on including GAF scores despite acknowledging that the DSM-V does not utilize GAF scores (which is because, as the Court of Veterans Appeals has noted, GAF scores are inherently unreliable). The Board finds that the psychologist's report contains verbiage and tangential diatribes which suggest that the psychologist has not engaged in a sober, objective analysis of the Veteran's condition. The sarcasm and off-topic complaints about how the DSM-V is organized further undermines the overall persuasiveness of his opinions. See 38 C.F.R. § 4.125(a) (adopting the DSM-V as the standard for diagnosing mental disorders). Moreover, VA treatment records contain significantly different observations and evaluations of the Veteran's symptoms and their impact on his functioning. For example, a July 2014 VA Mental Health Note (initial assessment) documents the Veteran's report of sleep difficulties and being "angry all the time" but that he is "not really depressed". The note documents his own reports that his energy is "always high", his concentration is "pretty good", his motivation "very high", and increased irritability and agitation. Notably, he denied loss of behavior control (i.e. impulse control) and denied "any problem in the marriage" as well as domestic violence or any problems at work, though he was recently laid off due to a back injury. The Veteran stated, consistent with his report to the 2014 VA examiner (which the private psychologist disputed as "not the truth"), that he remembers his parents as being fair and even handed and, despite a conflicted relationship with his stepfather, denied any history of childhood emotional, physical, or sexual abuse or any other trauma in childhood and described "his parents as loving and supportive." He also reported having friends nearby, an emotional support system, and a "loving and supportive marriage." A January 2015 VA Mental Health Note documents that the Veteran continued to have anger issues and "almost hit someone who tapped him on the back the other day", but the Veteran presented as cooperative, interested, attentive, his affect was stable with a full range, his mood was congruent and euthymic, he had true insight and good judgment, and the examination otherwise did not identify problems beyond the sleep issues and difficulty with irritability and angry outbursts. A February 2016 VA Mental Health Note again documents reports of poor sleep and need for treatment of anger, but denial of feeling depressed. The examining psychiatrist diagnosed bipolar disorder and noted some "mild" paranoia that was only "occasional." He had an irritable mood. Otherwise memory was intact, thought processes were normal, and judgment and insight were good. By March 2016, a VA mental health note reflects that changes in medication appeared to be helping and he was "less angry", though he did "feel a little paranoid" and had some (but improved) anxiety. He was sleeping better and continued to deny depression and the remainder of the examination was similar to those from January 2015 through February 2016 with the primary symptom being an irritable mood and sleep problems. April 2016 and August 2016 VA mental health notes both document the Veteran's report that "he is doing well" and that his mood was less "irritable." He continued to deny depression and there was no evidence of paranoia or other delusional thought processes. The examinations were both otherwise normal and did not identify significant psychological symptoms. The diagnosis remained bipolar affective disorder that was "moderate." Private treatment and VA treatment records continued to document mild to moderate symptoms. See, e.g., August 2018 VA Mental Health Note (reporting sometimes restless sleep, but that medication "has helped my anger a lot" with improved impulse control and anger management, an upbeat attitude, no paranoia or delusional thought processes, a bright affect, normal thought content and processes, good insight and judgment, and less irritable mood); September 2018 Progress Note ("Psychiatric: insight: good judgment. Mental Status: normal mood and affect and active and alert. Orientation: to time, place, and person. Memory: recent memory normal and remote memory normal."); January 2019 Progress Note ("PTSD. Reported by patient. Severity: able to maintain relationships; does not interfere with activities of daily living. Context: no major life stressors. Associated Symptoms: denies homicidal ideations; no flashback episodes; no delusions; no shortness of breath; mood good; no anxiety; no crying spells; no panic; no isolation; sleeping well; energy good; maintaining functionality."); April 2019 Progress Note (PTSD, same symptoms, or lack thereof, as in January 2019 progress note); August 2019 Progress Note ("PTSD. Reported by patient. Severity: able to maintain relationships; does not interfere with activities of daily living....Associated symptoms: denies homicidal ideations; no flashback episodes; no delusions; no shortness of breath; mood good; no anxiety; no crying spells; no panic; no isolation; sleeping well; energy good; maintaining functionality"); April 2020 VA Mental Health Note ("sleeping better", "less irritable", "he states that he is getting along a lot better with his wife and children", intact remote and recent memory, positive attitude, "good impulse control and good anger management", and otherwise essentially normal findings). In summary, the private psychologist's August 2017 Mental Status Examination and September 2017 Mental Disorders DBQ are outliers in terms of the assessment of the range, type, and severity of symptoms and functional impairments caused by the Veteran's acquired psychiatric disorder during this period. As noted above, the persuasiveness of the report is undermined in several respects, including that it departs in terms of factual assumptions and description of severity of symptoms from both other examinations and treatment records, which convinces the Board that the report is unreliable and not worthy of significant probative value. Instead, the VA examinations and treatment records from the period document symptoms and functional impairments of a type and severity that are consistent with the 50 percent rating criteria. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA and private treatment records and the 2012 and 2014 VA examinations support this conclusion as discussed in detail above. While the Veteran did experience a symptom contemplated by a 70 percent rating impaired impulse control (such as unprovoked irritability with periods of violence)the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Further, the VA examinations and VA treatment records failed to document any actual violence and treatment records tended to document a good marital relationship that had lasted six years as of the 2014 VA examination and continued throughout the remainder of the period as well as a functioning family with children the Veteran cared for. Treatment records further documented that, by 2020, the Veteran's impulse control and anger management were "good" which completed a trend of improvement in that area that began at least March 2016. The evidence is not in approximate balance, but is persuasively against the claim of entitlement to a rating in excess of 50 percent for the Veteran's service-connected acquired psychiatric disorder at any point during the period prior to November 10, 2021, therefore there is not reasonable doubt to be resolved in favor of the Veteran. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Entitlement to a rating in excess of 50 percent disabling prior to November 10, 2021, for service-connected PTSD previously rated as dysthymic disorder is denied. 3. Entitlement to a TDIU prior to July 11, 2017 As noted in the Introduction, after the development requested in the June 2021 Board Remand, the RO readjudicated the TDIU claim and granted a TDIU effective July 11, 2017. See November 2021 Rating Decision. Therefore, the issue before the Board at this time is entitlement to a TDIU prior to July 11, 2017. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. The determination of a referral (if the schedular requirement is not met) or a grant (if the schedular requirement is met) is dependent on analysis of "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Where a claimant has actually been employed during the relevant period, the regulations permit the grant of entitlement to TDIU where employment is marginal. See 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Id. Marginal employment generally will 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. Id. 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. Id. Consideration will be given in all claims to the nature of the employment and the reason for termination. Id. The Veteran met the schedular criteria as of April 21, 2014. Consequently, the Board must consider entitlement to an extraschedular TDIU prior to that date and a schedular rating from April 21, 2014, to July 10, 2017. For the reasons that follow, the Board finds that referral for extraschedular referral for the period prior to April 21, 2014, is not warranted and an award of a TDIU for any portion of the period on and after April 21, 2014, is not warranted. Most simply, the Veteran's own allegations are that he last worked full-time on July 10, 2017, and that he first became too disabled to work on July 10, 2017. See June 2021 VA 21-8940. In short, he has not alleged his service-connected disabilities rendered him unable to obtain or maintain gainful employment prior to July 11, 2017. Moreover, his own submissions also persuasively establish that he was gainfully employed from February 2010 (to include periods of active service) until July 10, 2017. See June 2021 VA 21-8940 (notably showing gainful employment working 65 hours per week from January 2016 to July 10, 2017); October 2015 VA 21-8940 (listing additional employment not included on the June 2021 VA 21-8940, such as working 72 hours per week from October 2014 to February 2015 making up to $4,000 per month). His actual employment during the entire period during which he worked at least 48 hours per week establishes that he was capable of the physical and mental acts required of employment, because he actually performed those acts. To the extent the Veteran or his representative would argue that his actual employment for more than 40 hours per week during this period was marginal, his list of employment includes employment throughout the period with earnings above the poverty threshold. Id. The Board notes that, to the extent the income information on the June 2021 VA 21-8940 is incomplete in that it merely lists his highest earnings per month or for the last year of his work with Snap-On-Tools, VA requested that he provided earnings statements from the Social Security Administration but he declined to provide that information or any similarly detailed income statements. See June 2021 Notice Letter to Veteran. The Veteran cannot create reasonable doubt by failing to provide requested information, but must meet his burden of production when VA requests evidence or assistance in obtaining relevant evidence. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) ("Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim."); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). Similarly, to the extent there is any implied argument that his actual employment during the relevant period was in a protected environment, the Veteran's Board hearing testimony does not support that conclusion, see April 2021 Board Hearing Tr. at 4-6, 10-11, and the other evidence of record is also against finding that the Veteran's employment was in a protected environment. See August 2021 VA 21-4192 (noting the Veteran's most recent employer statement that no concessions were made by reason of age or disability). Given the forgoing, the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, referral for extraschedular consideration of entitlement to a TDIU prior to April 21, 2014 is not warranted and a TDIU is not warranted at any point prior to July 11, 2017. Duties to Notify and Assist As discussed in the Introduction, the development directed by the Board in the June 2021 Board Remand to fulfill VA's duties to notify and assist and address the issues raised by the Veteran and his representative prior to that remand was completed satisfactorily. Subsequent to that Board remand, the Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.