Citation Nr: A22010708 Decision Date: 06/08/22 Archive Date: 06/08/22 DOCKET NO. 200704-103412 DATE: June 8, 2022 ORDER Entitlement to an effective date prior to December 24, 2019, for the grant of a compensable rating for service-connected post traumatic headaches (claimed as headaches) based on clear and unmistakable error (CUE), is denied. Entitlement to an effective date prior to December 24, 2019, for the award of a 30 percent rating for service-connected post traumatic headaches (claimed as headaches), is denied. Entitlement to an effective date prior to December 24, 2019, for the award of a 70 percent rating for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), is denied. Entitlement to a rating in excess of 30 percent disabling for service-connected post traumatic headaches (claimed as headaches), is denied. Entitlement to a rating in excess of 70 percent disabling for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. In a July 2016 rating decision, the RO granted service connection for post traumatic headaches (claimed as headaches) and assigned a noncompensable rating effective August 19, 2014. While the Veteran did initially appeal the decision, he did not perfect his appeal. 2. The July 2016 rating decision that granted service connection for post traumatic headaches and assigned a noncompensable rating is final. 3. In assigning a noncompensable rating, the July 2016 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. 4. In June and July 2016 rating decisions, the RO granted service connection for panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition and post traumatic headaches (claimed as headaches) and assigned a noncompensable ratings effective August 19, 2014. While the Veteran did appeal the decisions, he did not perfect his appeal. The decisions therefore became final. 5. In June 2019 the Veteran filed a claim for a higher-level review (HLR) and in July 2019 the RO denied the Veteran's claims for earlier effective dates and higher evaluations for his service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition) and for his service-connected residuals of a TBI. The Veteran did not appeal the decision, and therefore it is final. 6. Following the July 2019 final rating decision, there was no formal or informal claim for increased ratings for the Veteran's panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition) or post traumatic headaches (claimed as headaches) prior to the December 24, 2019, claim for increase. 4. In a March 2020 rating decision the RO increased the Veteran's rating for his service-connected post traumatic headaches (claimed as headaches) from noncompensable to 30 percent disabling and increased his rating for his service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition) from 30 percent to 70 percent, both effective December 24, 2019, the date of the Veteran's claim for increase. 5. For the period beginning December 24, 2019, the Veteran's service-connected post traumatic headaches (claimed as headaches) have manifested, at most, as prostrating attacks occurring on average once a month over several months, without more severe symptomatology more nearly approximating very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 6. For the period beginning December 24, 2019, the Veteran's service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition) have manifested, at most, as occupational and social impairment with deficiencies in most areas as a result of psychiatric symptomatology, to include irritability, depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting, without more severe manifestations that more nearly approximate total occupational and social impairment. 7. Resolving all doubt in the Veteran's favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The July 2016 decision that granted service connection and assigned a noncompensable rating for post traumatic headaches is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for the revision or reversal of the July 2016 rating decision that granted service connection and assigned a noncompensable rating for post traumatic headaches, on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 3. An effective date prior to December 24, 2019, is not warranted for an increased rating of 30 percent for service-connected post traumatic headaches (claimed as headaches). 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.400, 3.400(o). 4. An effective date prior to December 24, 2019, is not warranted for an increased rating of 70 percent for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition). 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.400, 3.400(o). 5. For the period beginning December 24, 2019, the criteria for a rating in excess of 30 percent disabling for service-connected post traumatic headaches (claimed as headaches) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 6. For the period beginning December 24, 2019, the criteria for a rating in excess of 70 percent disabling for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.130, Diagnostic Code 9412. 7. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2007 to August 2012. The Board notes that the rating decisions on appeal were issued in July 2019 and March 2020. In July 2020 the Veteran submitted a VA Form 10182 notice of disagreement in which he selected the Appeals Modernization Act (AMA) direct review lane. CUE Claim Entitlement to an effective date prior to December 24, 2019, for the grant of a compensable rating for service-connected post traumatic headaches based on CUE is denied. The Veteran contends that there was CUE in the July 2016 RO rating decision with regard to the assignment of a noncompensable rating for his service-connected post traumatic headaches, and therefore he is entitled to an effective date earlier than December 24, 2019, for his increased rating. As an initial matter, the Board finds the July 2016 rating decision is final. In a letter dated in August 2016, the Veteran was notified of the RO's decision and his appellate rights. In February 2017, the Veteran filed a notice of disagreement and the RO issued a statement of the case in May 2019. However, the Veteran did not perfect his appeal within the allowed time period, but rather opted to file a request for HLR. Therefore, the July 2016 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Consequently, as the July 2016 decision is final, such will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. Under the provisions of 38 C.F.R. § 3.105 (a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Furthermore, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that exited at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, supra. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104 (a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, supra. To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, supra. It must be remembered that there is a presumption of validity to otherwise final decisions, and that were such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. The Veteran contends there was CUE in the July 2016 rating decision that assigned a noncompensable rating for his service-connected post traumatic headaches, as the Veteran contends that the evidence of record showed his disability warranted a compensable rating, specifically a 50 percent rating. However the Veteran's argument is not applicable as the medical evidence of record, both contemporary VA treatment records as well as the VA examination conducted in March 2016 did not show characteristic prostrating attacks at the frequency and severity required for a higher or compensable rating. In reviewing all of the evidence of record at the time of the July 2016 rating decision, the Board finds no clear and unmistakable error of fact or law with respect to the assignment of a noncompensable rating. In this regard, of record and considered by the RO in the July 2016 rating decision was the Veteran's service treatment records, post-service treatment records, and the March 2016 VA headaches, traumatic brain injury, and general medical examinations. The RO granted service connection finding the Veteran's post traumatic headaches were residuals of his TBI, and assigned a noncompensable rating as the evidence of record did not show characteristic prostrating attacks at the frequency and severity necessary for a higher compensable rating. The RO's factual determination that the Veteran did not have characteristic prostrating attacks at the frequency and severity needed for a compensable rating, is supported by a plausible factual basis, to include the absence of any complaints or treatment for such in the medical records and notations of "with less frequent attacks" and "mild to moderate impact" on the VA examination. Here, the Board notes that the March 2016 examiner did note that the Veteran's prostrating attacks were productive of severe economic inadaptability; however the examiner further explained that his headaches had only a mild to moderate impact on his ability to work. Therefore, the Board finds that there is no document of record that can be construed as a complaint of or treatment for characteristic prostrating attacks averaging one in two months over the prior several months or more severe manifestations. Thus, the Veteran's sole argument that his disability was worse than the assigned noncompensable rating is unfounded as there is no contemporary evidence of such, and the RO followed the law and governing regulations at the time by assigning the noncompensable rating. Broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" can never rise to the stringent definition of CUE. Fugo, supra. Furthermore, clear, and unmistakable error is not the mere misinterpretation of facts. Oppenheimer, supra. Therefore, based on the foregoing, the Board finds that the correct facts as they were known at the time of the July 2016 rating decision were before the RO, and the statutory or regulatory provisions extant at that time were correctly applied. Moreover, such rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and does not contain errors which, had they not been made, would have manifestly changed the outcome of the claim. Therefore, the Veteran's CUE motion is denied. Effective Date Claims Entitlement to effective dates prior to December 24, 2019, for the grant of increased ratings of 70 percent disabling for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), and of 30 percent disabling for service-connected post traumatic headaches (claimed as headaches), are denied. The Veteran seeks to establish an effective date prior to December 24, 2019, for the awards of 70 percent and 30 percent disability ratings for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), and for service-connected post traumatic headaches (claimed as headaches). The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. As a general proposition, the law regarding the effective date of an award of service connection benefits is well-understood. The effective date of an award of benefits based on an original claim cannot be earlier than the date that the VA received the claim. See 38 U.S.C. § 5110 (a); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). In effect prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA after that date, the amended regulations apply. Here, the Veteran was granted service connection and assigned a 30 percent rating for his panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition) effective August 19, 2014, in a June 2016 rating decision. In addition, he was granted service connection and assigned a noncompensable rating for his post traumatic headaches (claimed as headaches) effective August 19, 2014, in a July 2016 rating decision. While the Veteran submitted a notice of disagreement in February 2017 and the RO issued a statement of the case in May 2019, the Veteran did not perfect his appeal. As such, the June and July 2016 decisions are final. In June 2019 the Veteran filed a claim for a HLR. In July 2019, the RO issued a rating decision. The Veteran did not file a notice of disagreement with the July 2019 rating decision; therefore such is final. Rather in December 2019, the Veteran submitted a new claim for increased ratings for his service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), and for service-connected post traumatic headaches (claimed as headaches). The RO granted an increased rating of 70 percent for the Veteran's service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), and a rating of 30 percent for his service-connected post traumatic headaches (claimed as headaches), effective December 24, 2019 (the date of the increased rating claim) in a March 2020 rating decision. The Veteran submitted a notice of disagreement to the effective dates of his award in July 2020. There is no document dated between the RO's final denial in July 2019 and December 2019 that could be construed as a claim for entitlement to increased disability ratings for his panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), and his service-connected post traumatic headaches (claimed as headaches). As such, the relevant date of claim in this case is December 24, 2019. Although the Board is sympathetic to the Veteran's claim, the Board is bound by the applicable statutes and regulations. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). The June and July 2016 and the July 2019 rating decisions were final and a new claim was not filed until December 2019. Thus, the effective date cannot be earlier than December 24, 2019, unless the evidence reflects that the worsening of the Veteran's disabilities occurred in the year prior to the claim. See 38 C.F.R. § 3.400 (o). Based on a review of the record, there is no medical evidence that shows worsening of the Veteran's panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), or his post traumatic headaches (claimed as headaches) one year prior to the December 2019 claim. Hence, the current effective date of December 24, 2019, is proper. As such, the preponderance of the evidence is against entitlement to an earlier effective date for the awards of 70 percent for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), and for 30 percent for his service-connected post traumatic headaches (claimed as headaches). Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim of entitlement for an earlier effective date for the awards of 70 percent for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), and for 30 percent for his service-connected post traumatic headaches (claimed as headaches) is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Entitlement to a rating in excess of 30 percent disabling for service-connected post traumatic headaches (claimed as headaches) is denied. The Veteran contends that the severity of his headaches warrants a higher rating. The Veteran's claim for increase was received in December 2019, therefore the appeal period begins in December 2018. However, as discussed previously the effective date for the Veteran's 30 percent rating has been established as December 24, 2019, therefore no further discussion of the period prior to December 24, 2019, is needed. The Veteran is currently assigned a 30 percent rating for his service-connected post traumatic headaches (claimed as headaches) effective December 24, 2019, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Diagnostic Code 8100 provides that migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with characteristic prostrating attacks occurring on an average once a month over last several months warrant a 30 percent rating while migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that, according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Veteran's post-service treatment records reflect the Veteran's reports of daily headaches at the end of the day. However, he reported that they were not bad, but that he did get nausea with his headaches, and that he got monocular migraines about every couple of months. While the Veteran has undergone various VA Headache examinations, as the appeal period begins in December 2018, the only examination pertinent to the appeal is the one conducted in February 2020. During the February 2020 VA Headaches examination and accompanying disability benefits questionnaire (DBQ), the examiner noted that the Veteran suffered from post traumatic headaches. The Veteran reported daily headaches at the end of the day, but "not bad." He stated that the headaches occurred along the front of his head and shot to the back. He denied any tenderness to palpation but did report nausea. He also noted that he got monocular migraines about every couple months. He reported that he took over the counter medication for his headaches. Upon examination, the examiner noted that the Veteran suffered headache pain, on both sides of his head which worsened with activity. He also noted non headache symptoms to include nausea, sensitivity to light and sound, and changes in vision. The Veteran reported that his headache pain and symptoms lasted less than 1 day. The examiner noted that the Veteran did suffer from characteristic prostrating attacks which occurred once every month. However, he did not find that such attacks resulted in prolonged migraines/non migraine pain which were productive of severe economic inadaptability. The examiner found no other signs or symptoms and found that the Veteran's headaches did not impact his ability to work. Throughout the appeal, the Veteran has submitted statements in which he has indicated his belief that his headaches warrant a higher rating than that which has been assigned. However, the Veteran has not made any specific allegations or contentions. Following a review of the relevant evidence of record, which includes VA treatment records, the Veteran's own statements, and the examination report in February 2020, the Board concludes that the Veteran is not entitled to a rating in excess of 30 percent for his service-connected post traumatic headaches under Diagnostic Code 8100. For the period on appeal, the Veteran's headaches manifested as chronic daily headache pain which worsened with physical activity, and which included nausea, sensitivity to light and sound, and vision changes. Furthermore, while the February 2020 examiner found that the Veteran did suffer from characteristic prostrating attacks of migraine pain which occurred once every month, he did not find that the Veteran's prostrating attacks were productive of severe economic inadaptability. Rather, the examiner found that the Veteran's headaches would not impact his ability to work. Therefore, the Veteran's headaches are found to only moderately interfere with his daily life and result in only some loss of function. Consequently, the Board finds that, beginning December 24, 2019, the Veteran's headaches most nearly approximated prostrating attacks occurring on an average once a month over several months, without more severe symptomatology more nearly approximating very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Furthermore, as previously noted, the February 2020 VA examiner specifically found that the Veteran did not suffer from very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore the Board finds that a rating in excess of 30 percent disabling beginning December 24, 2019, is not warranted. Therefore, the preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 30 percent disabling for his service-connected post traumatic headaches, beginning December 24, 2019. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Entitlement to a rating in excess of 70 percent disabling for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition), is denied. The Veteran contends that a higher rating is warranted for his mental health disability. As previously noted, the Veteran's claim for increase was received in December 2019, therefore the appeal period begins in December 2018. However, as discussed previously the effective date for the Veteran's 70 percent rating has been established as December 24, 2019, therefore no further discussion of the period prior to December 24, 2019, is needed. The Veteran is currently in receipt of a 70 percent disability rating for his service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition) effective December 24, 2019, pursuant to 38 C.F.R. § 4.125, Diagnostic Code 9412. Diagnostic Code 9412 is evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18 ; 38 C.F.R. § 4.130, Diagnostic Code 9411. Furthermore, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126 (a). In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning (GAF) score is another component considered to determine the entire disability picture for the Veteran. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). The Board notes that VA recently updated references in its regulations to the Fifth Edition of the DSM (DSM-5), which has removed the use of GAF scores due to their inconsistency and subjective nature. The changes only apply to claims that were certified for appeal to the Board after August 4, 2014. See 80 Fed. Reg. 14,308 (March 19, 2015) (Applicability Date). Inasmuch as the Veteran's appeal was certified to the Board in November 2020, the amendments are applicable. The Veteran's post-service treatment records reflect that he underwent some counseling and psychiatric treatment. Treatment notes repeatedly reflect that the Veteran looked slightly older than stated, but casually dressed and adequately groomed. His behavior was pleasant although mildly guarded. He exhibited no abnormal movements and his eye contact was appropriate, although occasionally avoidant. His speech was normal in rate and volume, although occasionally monotone. He was oriented to person, place, and time and his mood was ok and his affect while constricted was not anxious. His thoughts were linear, logical, and goal directed. He denied any suicidal or homicidal thoughts or intentions. He exhibited no overt delusions. He denied hallucinations. The examiners found no apparent difficulties with attention, focus, language, or memory. Finally, his insight and judgment were found to be fair. While the Veteran has undergone various VA mental health examinations, as the appeal period begins in December 2018, the only examination pertinent to the appeal is the one conducted in February 2020. In February 2020 the Veteran underwent a VA Mental Disorders examination with an accompanying DBQ. The examiner noted that the Veteran suffered from panic disorder without agoraphobia and other specified trauma or stressor related disorder. The examiner found that the Veteran's mental health disabilities caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that he lived with his wife and son and that his irritability did interfere with their relationships. He also noted that he had some military friends but that they mostly lived out of state. In addition he enjoyed reading and watching documentaries. He stated that he had not worked since he was discharged and while he attempted to take some online classes, he had not attended school since 2016. Upon examination, the examiner noted that the Veteran was groomed and casually dressed. He was oriented to person, place, and time. His eye contact was good and he was cooperative. His speech was normal in rhythm, rate, and volume and his mood was ok. His affect was stable and congruent with his mood. He denied any suicidal or homicidal ideations. His thought process was linear, logical, and goal directed. His insight, judgment, and reasoning appeared to be intact. Finally, there was no evidence of any perceptual disturbance, paranoia, or delusional thinking. The examiner further noted that the Veteran suffered from a depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. Throughout the appeal, the Veteran has submitted statements in which he alleges that his condition is worse than his currently assigned rating. Following a review of the relevant evidence of record, which includes VA treatment records, the Veteran's own statements, and the examination report in February 2020, the Board concludes that the Veteran is not entitled to a rating in excess of 70 percent for his service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder (also claimed as mental health condition). In this regard, the Board finds that, for the period beginning December 24, 2019, such disability has manifested by at most occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as irritability, depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting, without more severe manifestations that more nearly approximate total occupational and social impairment. In this regard, the Board finds that such symptomatology, to specifically include the Veteran's depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting, as well as the frequency, severity, and duration of his psychiatric symptoms are contemplated in his 70 percent rating. As indicated previously, a 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Based on the evidence of record, the Board finds that the Veteran's panic disorder without agoraphobia and other specified trauma or stressor related disorder does not result in total occupational and social impairment. In this regard, the evidence does not show that the Veteran has total occupational and social impairment, due to such symptoms as: gross impairment in 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 to time or place; memory loss for names of close relatives, own occupation, or own name. In this regard, the Veteran's thought process has routinely been noted to be linear, logical, and goal directed and there is no evidence of delusions, or significant cognitive impairment found on any of the mental status examinations. VA treatment records showed no perceptual disturbance such as delusions, mania, or psychosis. In addition, the Veteran has not displayed grossly inappropriate behavior or persistent danger of hurting himself or others. And finally, the Veteran has routinely been found to be fully oriented and adequately groomed, and no indication of memory loss for names of close relatives, own occupation, or own name. The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating criteria, to include irritability. See Mauerhan, supra; Vazquez-Claudio, supra. However, the Board finds that such symptom does not more nearly approximate a rating in excess of 70 percent under the General Rating Formula as it is not of such a severity or frequency to result in total occupational and social impairment. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence is against the Veteran's claim of entitlement to a rating in excess of 70 percent disabling for service-connected panic disorder without agoraphobia and other specified trauma or stressor related disorder beginning December 24, 2019. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Other Considerations The Board has considered whether further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that his symptomatology has been stable for each disability throughout the appeal and the individual stages already assigned. Therefore, assigning further staged ratings for such disabilities is not warranted. In assessing the severity of the disabilities under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher ratings pursuant to any applicable criteria at any point pertinent to this appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence of record is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to a TDIU due to service-connected disabilities is granted. The Veteran asserts that he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Veteran is service-connected for panic disorder without agoraphobia and other specified trauma or stressor related disorder rated as 30 percent disabling from August 19, 2014, and as 70 percent disabling from December 24, 2019; for post traumatic headaches rated as noncompensable from August 19, 2014, and as 30 percent disabling from December 24, 2019; for tinnitus rated as 10 percent disabling from April 1, 2014; for intervertebral disc syndrome (IVDS) rated as 10 percent disabling from April 1, 2014; for left ear hearing loss rated as noncompensable from April 1, 2014; and for residuals of a TBI rated as noncompensable from August 19, 2014. As such, he meets the schedular threshold criteria for consideration of a TDIU. 38 C.F.R. § 4.16 (a). Additionally, upon review of the evidence, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. Turning to his educational and work experience, the evidence of record indicates that the Veteran completed three years of college, with some subsequent technical training. Regarding his work history, on his VA Form 21-8940, the Veteran indicated that he had not worked since his military discharge in 2012. He reported that the combination of his mental health and physical disabilities made it so that he could not secure or maintain gainful employment. Turning to the evidence of record, the Board notes there are various VA examinations and treatment records, which speak to the impact that the Veteran's various service-connected disabilities have on his ability to obtain and sustain meaningful employment. In March 2016 the Veteran underwent several VA examinations to include General Medical, Eye, Hearing Loss and Tinnitus, Wrist, Stomach, Sinusitis and Rhinitis, Knee, Back, Headaches, Esophageal, Skin, Shoulders, PTSD, and TBI. However, the Board notes that of these examinations only a few are relevant as only service-connected disabilities can be considered for the Veteran's TDIU claim. The Hearing Loss and Tinnitus examiner noted that the Veteran's hearing loss and tinnitus did not impact the Veteran's activities of daily living or his ability to work. The Back examiner noted that the Veteran's chronic lumbar strain did impact his ability to work as it caused mild to moderate effects due to chronic pain, decreased ability to perform lifting, and a need to change positions frequently. The residuals of a TBI examiner noted that the Veteran's TBI residuals manifested as headaches and that such did impact his ability to work causing mild to moderate impact as they resulted in increased absenteeism and decreased concentration. The Headaches examiner also found that his headaches impacted his ability to work causing mild to moderate impact due to increased absenteeism and decreased concentration. The PTSD examiner found that while the Veteran did not meet the diagnostic criteria for PTSD, he did suffer from a panic disorder and other specified trauma or stressor-related disorder which caused 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. In February 2020 the Veteran underwent additional VA examinations to include Headaches and Mental Disorders examinations. The Headaches examiner found that the Veteran's reported daily chronic headaches did not impact his ability to work. The Mental Disorders examiner found that the Veteran's conditions caused occupational and social impairment with reduced reliability and productivity. However, the examiner also noted that the Veteran had not worked since his discharge and that he exhibited difficulty in establishing and maintaining effective work and social relationships and that he had difficulty in adapting to stressful circumstances, including work or a worklike setting. Treatment records throughout the appeal indicated that the Veteran suffered from chronic back and headache pain. In addition, he suffered from a panic disorder as well as another trauma/stressor disorder and hearing difficulty. Throughout the appeal, the Veteran has submitted statements indicating his belief that his service-connected disabilities have impaired his ability to secure and maintain employment. He noted that he had not worked since his discharge and while he attempted to take classes, his conditions made such endeavors extremely difficult. He stated that he wanted to work for VA, but that he knew his panic disorder, in particular, would make him a less than ideal employee requiring hours to come down from a panic attack. While most of the VA examiners indicated the Veteran could perform some work, specifically sedentary or solitary work, it is clear that his disabilities would hinder and impact his ability to work and that concessions would be necessary. Furthermore, the Veteran's physical restraints would require various accommodations or entirely prohibit any type of physical labor. Therefore, both sedentary and physical labor appear to be prohibited. Finally, the Veteran does not have the skills or expertise to perform other types of solitary employment. In this regard, he has very little additional training or completed higher education. Therefore, when taking into account the Veteran's educational and work history as well as his various service-connected disabilities which cause both physical and psychological symptoms, the Board finds that the Veteran is not able to maintain the type of employment in which he is experienced. Notably, the question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment he is experienced in due solely to his service-connected disabilities. In this regard, the Board finds the opinions of the VA examiners to be highly probative as all of the examiners considered the full evidence of record, including lay statements, and clearly articulated how the Veteran's various service-connected disabilities would or would not individually and collectively hinder physical as well as sedentary and solitary employment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Furthermore, the Board finds that the Veteran's lay statements to also be highly probative as he has provided an extensive account of the impact of his disabilities on his activities of daily living as well as his professional duties. Therefore, considering the totality of the evidence, the Board finds that a TDIU is warranted. Based on the analysis above and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, Gilbert, supra. Therefore, entitlement to a TDIU is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.