POSTTRAUMATIC STRESS DISORDER (PTSD)

CAROLINE FLEMING · 2025 · Case ID: 25012289

MIXED

Summary

The veteran, who served from December 2000 to August 2003, appeals the denial of increased ratings for his psychiatric disability and migraine headaches, as well as entitlement to TDIU. The Board granted an initial 70% rating for his psychiatric disability (PTSD) from January 8, 2014, to September 20, 2020, finding that his symptoms more closely approximated the criteria for this rating throughout the period, though not the 100% rating. The Board also granted a 50% rating for migraine headaches associated with TBI from January 8, 2014, to September 20, 2021, finding that the Veteran's migraines met the criteria for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The Board denied TDIU from January 8, 2014, to August 24, 2020, because the Veteran maintained substantially gainful employment as a police officer during that time, earning a high salary and not experiencing marginal employment or a protected work environment. However, the Board granted TDIU effective August 25, 2020, as the Veteran reported leaving his job due to his service-connected disabilities, which were then rated at a combined 90%. The Board assigned significant probative weight to VA examinations and the Veteran's and his wife's lay statements regarding his symptoms.

Rationale

Symptoms more nearly approximated 70% rating criteria; Symptoms did not reach 100% rating level; Holistic analysis of listed and unlisted symptoms

Special Benefit

TDIU

Diagnostic Code

9411

Docket No.

15-28 389

Full Decision Text

Citation Nr: 25012289
Decision Date: 09/30/25 Archive Date: 09/30/25

DOCKET NO. 15-28 389
DATE: September 30, 2025

ORDER

Entitlement to an initial rating of 70 percent, but no greater, for posttraumatic stress disorder (PTSD) with unspecified depressive, anxious and alcohol use disorder (psychiatric disability), from January 8, 2014, to September 14, 2015, is granted.

Entitlement to a rating greater than 70 percent for a psychiatric disability from September 15, 2015, to September 20, 2020, is denied.

Entitlement to an initial rating of 50 percent, but no greater, for migraine headaches associated with traumatic brain injury (TBI) from January 8, 2014, to September 20, 2021, is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU), prior to August 25, 2020, is denied.

Entitlement to a TDIU as of August 25, 2020, is granted.

FINDINGS OF FACT

1. From January 8, 2014, to September 20, 2020, the severity, frequency, and duration of the Veteran's psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas but did not more nearly approximate total occupational and social impairment.

2. From January 8, 2014, the Veteran's migraines manifested as frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

3. From January 8, 2014, to August 24, 2020, the Veteran's service-connected disabilities, either individually or when considered together, did not cause him to be unable to secure or follow a substantially gainful occupation.

4. Beginning August 25, 2020, the Veteran's service-connected disabilities, when considered together, caused him to be unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. From January 8, 2014, to September 14, 2015, the criteria for entitlement to a disability rating of 70 percent, but no greater, for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. From September 14, 2015, to September 20, 2020, the criteria for entitlement to a disability rating greater than 70 percent for a psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411.

3. From January 8, 2014, to September 20, 2021, the criteria for a rating of 50 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a; DC 8100.

4. From January 8, 2014, to August 24, 2020, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1114; 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.50(i), 4.3, 4.16(a), (b), 4.18, 4.19.

5. Beginning August 25, 2020, the criteria for a TDIU have been met. 38 U.S.C. §§ 1114; 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.50(i), 4.3, 4.16(a), (b), 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 2000 to May 2001; from January 2002 to December 2002, and from March 2003 to August 2003.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2014 and August 2014 rating decisions by a Department of Veterans Affairs (VA
. §§ 1114; 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.50(i), 4.3, 4.16(a), (b), 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 2000 to May 2001; from January 2002 to December 2002, and from March 2003 to August 2003.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2014 and August 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has had three hearings before the Board regarding the issues on appeal before. Generally, under the Legacy system, Veterans Law Judges (VLJs) who conduct hearings must participate in the final determination on the claim. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Pursuant to 38 U.S.C. § 7102(a), a proceeding instituted before the Board may be assigned to an individual member of the Board, or to a panel of not less than three members of the Board. When a Veteran testifies at personal hearings before two separate VLJs during an appeal, and those hearings cover one or more common issues, a third VLJ is assigned to the panel after the second Board hearing is conducted. The Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that a Veteran be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011).

In June 2020 the Veteran filed a Legacy appeal to the Board with a hearing request. See Appeal to Board of Veteran's Appeals (VA Form 9). A hearing was conducted in January 2021 by VLJ Heneks. In December 2021, the Veteran requested another Board hearing, which was scheduled for August 2023. Another hearing was conducted in February 2024 by VLJ Bryan Watson. However, no letter was sent to the Veteran requesting that he waive a hearing with the judge who conducted the first hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Therefore, in accordance with Arneson, a third hearing was required. See April 2024 Correspondence. A third hearing was held in July 2024 with VLJ Caroline Fleming. Given that the Veteran has had hearings before all three members of the below panel pursuant to Arneson, the Board will proceed with adjudication of the claim.

The claim was last before the Board in September 2023 when the Board remanded the claims for the AOJ to obtain curricula vitae (CVs) for the June 2014 VA examinations for PTSD and residuals of a traumatic brain injury (TBI), the July 2014 VA examination for headaches, the January 2015 VA examination for headaches and March 2015 addendum medical opinion, the September 2015 VA examinations for PTSD and headaches, the March 2020 VA examination for headaches, the April 2020 VA examination for PTSD, the November 2020 VA examinations for headaches and residuals of a TBI, the December 2020 VA examination for PTSD, and the September 2021 VA examinations for PTSD, headaches, and residuals of a TBI. A remand by the Board confers on the claimant a legal right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates another remand for corrective action. See id. However, substantial compliance with the remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010), Dyment v. West, 13 Vet. App. 141, 147 (1990). In May 2024, the AOJ obtained the examiners' CVs and provided them to the Veteran, as instructed in the September 2023 Board remand. Therefore, the Board finds that the AOJ has substantially complied with the Board remand directives and will proceed with adjudication of the claims.

INCREASED RATING

Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. §
ki, 24 Vet. App. 167, 176 (2010), Dyment v. West, 13 Vet. App. 141, 147 (1990). In May 2024, the AOJ obtained the examiners' CVs and provided them to the Veteran, as instructed in the September 2023 Board remand. Therefore, the Board finds that the AOJ has substantially complied with the Board remand directives and will proceed with adjudication of the claims.

INCREASED RATING

Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. Id. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility.

When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

VA is responsible for determining whether the evidence supports the claim or is in relative balance, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against a claim, the claim is denied.

1. Entitlement to an initial rating of 70 percent for a psychiatric disability from January 8, 2014, to September 14, 2015.

2. Entitlement to a rating greater than 70 percent for a psychiatric disability from September 15, 2015, to September 20, 2020.

The Veteran's psychiatric disability is rated 30 percent from January 8, 2014; 70 percent from September 15, 2015; and 100 percent from September 21, 2020, under 38 C.F.R. § 4.130, DC 9411, governing PTSD. See November 2021 Code Sheet. He contends that symptoms of his psychiatric disability are more severe than reflected by his ratings prior to September 21, 2020. See October 2015 Notice of Disagreement (NODs); January 2021, May and July 2024 Appellate Briefs; January 2021, February 2024 and July 2024 Board Hearing Transcripts.

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);
1, governing PTSD. See November 2021 Code Sheet. He contends that symptoms of his psychiatric disability are more severe than reflected by his ratings prior to September 21, 2020. See October 2015 Notice of Disagreement (NODs); January 2021, May and July 2024 Appellate Briefs; January 2021, February 2024 and July 2024 Board Hearing Transcripts.

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 before the Board is whether a rating greater than 30 percent for the Veteran's psychiatric disability is warranted from January 8, 2014, to September 14, 2015, and whether a rating greater than 70 percent is warranted from September 15, 2015, to September 20, 2020. As noted above, effective September 21, 2020, the Veteran's psychiatric disability has been rated as 100 percent disabling; this is the highest schedular rating available and will not be disturbed.

The Board concludes that an initial rating of 70 percent, but no greater, is warranted for the Veteran's psychiatric disability for the entire period on appeal, from January 8, 2014, to September 20, 2020. The Veteran's symptoms more nearly approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most nearly approximated the level associated with a 70 percent rating for the entire appeal period. However, the probative evidence persuasively weighs against finding that the Veteran's symptoms resulted in the level of impairment required for a disability rating of 100 percent during the period on appeal.

Regarding psychiatric symptomatology, 38 C.F.R. § 4.130, DC 9411, governing PTSD, provides that 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, private evaluations, the September 2015 VA Examination, Social Security Administration (SSA) records, and various lay statements show that the Veteran's psychiatric disability manifested as symptoms associated with a 30 percent rating: depressed mood, anxiety, suspiciousness, chronic sleep impairment; a 50 percent rating: flattened affect, impaired abstract thinking, impairment of short and longterm memory, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships; and a 70 percent rating: suicidal ideation, obsessional rituals which interfere with routine activities, near-continuous panic or depression affecting the ability to function independently, intermittently illogical, obscure, or irrelevant speech, impaired impulse control, such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. The Veteran had symptoms consistent with a 100 percent rating: gross impairment in thought processes and communication, persistent delusions or hallucinations, grossly inappropriate behavior, and memory loss for names of close relatives.

The Veteran also had symptoms that are not listed with a specific rating, such as repeated dreams, memories, thoughts, and images of the cited trauma, avoidance, paranoia, social isolation, anhedonia, irritability, hypervigilance, exaggerated startle response, problems with concentration, flashbacks, and guilt. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more nearly approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126.

VA treatment records show the Veteran was assessed for PTSD in February 2014. See Lewiston Vet Center PTSD Assessment. The clinician noted severe, negative alterations in thoughts and emotions, avoidance of triggers that greatly impact the Veteran's daily function and overall health and happiness, intrusive memories, major sleep disturbances, change in relationship dynamics, extreme emotions, feelings of isolation despite being married with four children, hyper alertness to possible threats, and difficulty displaying appropriate emotional regulation skills and behavior when dealing with civilians, family and non-Veteran friends. The clinician also noted emotional numbness to some very traumatic events.

July 2015 Philadelphia VAMC mental health progress notes indicate that the Veteran experienced significant anxiety and negative emotions/thoughts around a host of important areas of functioning and he has not been open and honest for fear of his report's impact on his civilian employment; thus, his disability is more severe than previously thought.

The Veteran was provided with a new VA examination in September 2015. The examiner diagnosed PTSD and unspecified depressive disorder with anxious distress and moderate alcohol use disorder and noted that the Veteran's symptoms of depressed mood with anxious distress are secondary to his PTSD; his symptoms overlap and co-occur; and his alcohol use disorder is secondary to symptoms of his PTSD and depressive disorder and an attempt to self-medicate. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; impaired impulse control, such as unprovoked irritability with periods of violence; hypervigilance; exaggerated startle response; recurrent, involuntary, and intrusive distressing memories and dreams of traumatic event, dissociative reactions/flashbacks, intense or prolonged psychological distress at exposure to cues that symbolize or resemble an aspect of the traumatic events, avoidance, inability to remember an important aspect of the traumatic events, persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent distorted cognitions about the cause or consequences of the traumatic events, persistent negative emotional state; markedly diminished interest or participation in significant activities; and persistent inability to experience positive emotions.

The Veteran reported that his disability impacts his ability to tolerate stress, concentrate, and causes problems interacting appropriately with others. He described drinking daily to cope with his feelings of distress. He reported being constantly on edge, hypervigilant with periods of irritability both on the job and interpersonally. He reported that he has missed time from work due to his mood instability and described ongoing problems on the job as well. He denied taking medications but reported that he has been in counseling to treat his PTSD symptoms. He describes being on edge constantly with little tolerance for daily stress; experiencing depressive symptoms, which result in attempts to avoid contact with others and finding little pleasure in life. The Veteran reported that he has very limited patience for his young children and finds himself yelling at times about trivial issues, and while his wife is supportive, he pushes her away and can be verbally hostile with her as well; and he shuts out those that disagree with him or whom he dislikes what they are saying. As such, he stated that he has very limited contact with his family and few people whom he is close to. The Veteran reported that he keeps others away with his irritability and described not wanting people to get too close on the chance that they become aware of how overwhelmed and damaged he feels.

The examiner indicated that the Veteran has significant problems with hypervigilance, nightmares and exaggerated startle response, which impact his ability to sleep; emotional numbness with difficulties expressing loving feelings towards his family and a generally restricted range of affect; he has problems tolerating stress and is prone to outbursts of verbal anger towards his family and people in the community; he feels depressed at times including symptoms of anhedonia and self-isolates; and he has been drinking daily to help coping with his emotional instability and difficulties sleeping. The examiner noted that the Veteran was oriented with good eye contact; his thought processes were clear/goal directed; he denied suicidal ideations, plans or intentions to self-harm; he presented with no evidence of psychosis or paranoid ideations; his memory and cognitive skills were grossly intact; and his affect was congruent with his highly anxious mood. The examiner concluded that the Veteran experienced occupational and social impairment with reduced reliability and productivity.

In an October 2015 statement, he reported that prior to recently, he was afraid of revealing the extent of his PTSD symptoms, but now he can finally be open with the VA examiner. See NOD.

During an April 2017 VA Psychiatric Evaluation, the Veteran reported isolation, hypervigilance, irritability with anger outbursts, and a "short temper." He reported having these symptoms since returning from his military service in Iraq. He also reported insomnia and stated, "My mind runs," and that he must get up to check the house every time he hears a noise. He reported constant nightmares of being shot at and notes that he is short with his family and friends and tends to avoid people. He described always sizing people up and thinking of worst-case scenarios, such as someone "shoot[ing] up the place," but feels a sense of calm and focus when threats are identified. He also has been drinking to self-medicate, with approximately six shots of vodka and six beers daily. He denied suicidal ideation and reported being triggered by the smell of diesel fuel, people in Middle Eastern garb, and news reports. He reported using alcohol to suppress thoughts and memories related to his trauma and to help him fall asleep.

December 2017 VA mental health treatment notes show the Veteran reported violent, disturbing dreams about three times a week and waking up the other night striking his wife after a violent dream about being overseas.

March 2018 VA mental health notes indicate the Veteran reported that he is having a difficult time because of severe nightmares and stated "I have dreams of killing. I can feel myself pulling the trigger and feeling the percussion of the weapon in my dream." The Veteran talked about how the nightmares are extremely vivid and negatively impact his mood throughout the day.

April 2018 VA mental health notes show the Veteran reported not taking his prescribed Prazosin as he did not want to be on so much medication; he continues to have disturbing, vivid nightmares and difficulty sleeping and admitted to continued alcohol use, including drinking three to four drinks of vodka during the week and a full 750 ml on the weekend. He denied suicidal ideation.

During a phone call to VA in May 2018, he stated he had been prescribed medications for PTSD and has been taking such medications since the appeal began. See Report of General Information.

In May 2018, the Veteran reported that he has been prescribed three medications
Veteran talked about how the nightmares are extremely vivid and negatively impact his mood throughout the day.

During a phone call to VA in May 2018, he stated he had been prescribed medications for PTSD and has been taking such medications since the appeal began. See Report of General Information.

In May 2018, the Veteran reported that he has been prescribed three medications for PTSD that have ruined his quality of life and relationships and provided copies of current prescriptions for Bupropion, Prazosin, and Sertraline. See Statement in Support of Claim, April-May 2018 prescriptions.

September 2018 mental health notes show the Veteran reported paranoia and hypervigilance, sleep disturbance, and vivid dreams/nightmares, including nightmares of death and dying that wake him up from sleep and he has trouble falling back asleep. He stated that he had not been taking his prescribed Prazosin because he believed he was on too many medications and described his mood as "not caring very much," said people around him do not understand what it was like in Iraq where he was deployed. He admitted to daily drinking of alcohol, sometimes drinking until he passes out.

March 2019 VA treatment notes show the Veteran reported his mood was "not good." He stated he is irritable and quick to anger and described situations at work, where he "flipped out" at his boss because of something the boss said. He stated he is calling out from work or leaving work early, and "I can't stand to be around anyone I work with." He reported increased anger, self-isolation, and feeling "numb" and "like I don't care," much of the time. He also stated he is especially angry at the way things are going in this country, and questions if his time in the service was of any value. He described decreased libido from medication and admitted daily alcohol consumption, mainly vodka, and on his days off, he drinks "about 750 ml in a day," and often drinks to the point of being intoxicated and blacking out. He stated "I will wake up in the morning and not remember anything that happened the night before." He denied suicidal and homicidal ideation.

May 2019 mental health notes showed the Veteran had gained 15-20 pounds and noticed being irritable, easily agitated and angry, sometimes for no reason, but denied suicidal or homicidal ideation.

September 2019 mental health treatment notes show the Veteran reported feeling his "dark side" is coming out again "faster than I thought it would," and stated that he feels "like a monster" because he has gruesome thoughts, and has done gruesome things; and craves to go back to "what I was like in my 20s" with a reckless, fast-paced lifestyle and "being nuts." He described being on the job and seeing sad, tragic things with drug use, and feels no empathy or sadness for the people and sees this as evidence that he is "messed up" and "a monster." He reported drinking heavily up to a fifth of vodka a day and taking Zoloft, Bupropion, Prazosin, and Sertraline. He also reported that he is seeing a community therapist and that he was referred for psychotherapy.

December 2019 private treatment notes show a diagnosis of PTSD and mild alcohol use disorder causing relationship distress with spouse, problems related to social environment, and problems related to employment. The clinician noted that the Veteran had been engaging in individual psychotherapy with him since 2005 and his PTSD symptoms continue to exacerbate his social and occupational functioning. He has experienced an increase in recurring and intrusive distressing recollections and dreams of traumatic events. His suppression of emotions since his return from deployment in Iraq has deeply impacted his emotional intelligence; he struggles to find joy in any aspect of life, feels detached from others and out of place in social functions, experiences unprovoked irritability, socially isolates to avoid conflict, has poor concentration and memory, and increased hypervigilance. The clinician also indicated that the Veteran's judgment has been impaired, and decision-making skills are questionable, and he engages in obsessional rituals that interfere with his day-to-day life and has been experiencing marital problems, which increases his pattern of avoidance of his family.

February 2020 Philadelphia VAMC mental health notes show the Veteran reported trouble at work and that he has been stripped of some of his privileges and there is an investigation into a "stalking
has deeply impacted his emotional intelligence; he struggles to find joy in any aspect of life, feels detached from others and out of place in social functions, experiences unprovoked irritability, socially isolates to avoid conflict, has poor concentration and memory, and increased hypervigilance. The clinician also indicated that the Veteran's judgment has been impaired, and decision-making skills are questionable, and he engages in obsessional rituals that interfere with his day-to-day life and has been experiencing marital problems, which increases his pattern of avoidance of his family.

February 2020 Philadelphia VAMC mental health notes show the Veteran reported trouble at work and that he has been stripped of some of his privileges and there is an investigation into a "stalking" charge against him from someone at his work. He reported feeling "paranoid" at work now, thinking people are watching him, and that he had some family problems back in the Fall, causing him to leave home for a week without telling his family because he wanted to be away from everyone and his responsibilities. He also reported severe insomnia and paranoia and that sometimes he sees shadows and thinks he hears something in the room at night. He reported his mood was "very anxious," thoughts were circumstantial, and he continues to drink alcohol and denied suicidal intent at present.

April 2020 VA treatment notes show the Veteran reported working as a police officer and getting into trouble at work and is currently being closely monitored as a result. He contended that he has been unfairly accused of stalking and currently does patrol work after being stripped of specialties including working as a rifle firearm instructor. He described challenges with anger, sense of worthlessness, hypervigilance, and difficulty trusting others and asserted that he usually holds things in and masks feelings but now has been increasingly "letting people have it." He reported nightmares, poor sleep, and terrible memory, which is frustrating, and he tends to isolate and drink vodka daily "to help soothe memories." He reported suicidal intent at times but denied current intent. He also reported sometimes he hears voices and thinks they are people planning to attack him. The clinician noted that the Veteran has great insight and that his symptoms are not psychotic in nature but rather a symptom of his hypervigilance.

The Veteran underwent another VA examination in April 2020. The examiner diagnosed PTSD; unspecified depressive disorder; severe alcohol use disorder; and traumatic brain injury (TBI). The examiner noted that the Veteran's symptoms of drastic shifts in focusing and concentration, insomnia, low frustration tolerance and memory issues are all common in both PTSD and TBI. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; involuntary, and intrusive distressing memories and dreams of traumatic event, dissociative reactions/flashbacks, intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events, marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic events, avoidance, inability to remember an important aspect of the traumatic events, persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent, distorted cognitions about the cause or consequences of the traumatic events, persistent negative emotional state; markedly diminished interest or participation in significant activities; and persistent inability to experience positive emotions.

The Veteran reported that he lives with his wife of 14 years and four children and that his chronic PTSD continues to interfere with their relationships; and he no longer has relationships with his mother, mother-in-law, and friends and has not "spoken to his mother and brother in years." He reported that he continues to work as a police officer, but he does not take kindly to his superiors, the public, and coworkers and has been under investigations for threats, stalking, and intimidation. He reported that he was "losing it" on people, and he will put "citizens in their place" when he is triggered. He reported being in the "early warning system" at work related to his mental health and that he was also written up for misconduct. He also reported that he drinks vodka daily because "alcohol helps him with the hypervigilant state;" he experiences nightmares and sweats and poor sleep, and when he smells certain things, he is reminded of "hot diesel fuel" which has made him pull over on the side of the road while driving. He reported that he experiences outbursts of anger, and if provoked, he will tend
and has been under investigations for threats, stalking, and intimidation. He reported that he was "losing it" on people, and he will put "citizens in their place" when he is triggered. He reported being in the "early warning system" at work related to his mental health and that he was also written up for misconduct. He also reported that he drinks vodka daily because "alcohol helps him with the hypervigilant state;" he experiences nightmares and sweats and poor sleep, and when he smells certain things, he is reminded of "hot diesel fuel" which has made him pull over on the side of the road while driving. He reported that he experiences outbursts of anger, and if provoked, he will tend to react impulsively, and his wife must remind him to brush his teeth and assist with basic tasks at home.

The examiner noted minimal eye contact, depressed mood, normal speed rate and rhythm, congruent affect and that the Veteran was very forthcoming with his feelings and current state. The examiner observed psychomotor agitation throughout the assessment, and the Veteran continued to deny any suicidal or homicidal ideation, obsession, compulsion or phobia and is alert and oriented with fair insight and judgment, as evidenced by his motivation to seek help and treatment. The examiner noted that the Veteran reported that he has had past suicidal ideation and denied any current thoughts, means or intent and states that he has used the Suicide Hotline in the past, and he has a network of other Marines that he often reaches out to. The examiner concluded that the Veteran experienced occupational and social impairment with deficiencies in most areas.

In a May 2020 Statement, the Veteran reported symptoms of isolation, suicidal and homicidal ideation and that he received major discipline at work and left his family for a month with his wife thinking he killed himself. He also asserted that he experienced gross impairment in thought processes; excessive worry; delusions/hallucinations where he sees people and hears them talking; gross inappropriate behavior, including public drunkenness, fighting, and no verbal control; persistent danger of hurting self or others as he owns guns and carries them as part of his job; lack of personal hygiene; forgetting relatives' names and directions to places that he has been many times; and that he goes blank, often staring off in confusion. He also listed symptoms of near-continuous panic/depression, short- and long-term memory impairment, flattened affect, intermittent speech, illogical, obscure or irrelevant, difficulty understanding complex commands, impaired judgement, impaired abstract thinking, gross impairment in thought process/communication, suicidal ideation, and impaired impulse control.

August 2020 VA mental health notes indicate the Veteran reported his mood was very "stressed;" he was not sleeping; and he went out on leave from work. He described being bullied, harassed, taunted and intentionally embarrassed by supervisors and managers and added that this has been going on for over a year and has increased recently, which has put him "over the edge." He stated he is now under investigation from Internal Affairs. He described paranoid thoughts, feeling like people were following him, whispering and conspiring against him, and that he hears whispers, like people talking about him behind his back. He reported drinking alcohol daily "about five vodkas with lunch, then a couple beers later on, and then a few more vodkas before bed." He reported intrusive violent thoughts but denied current suicidal or homicidal ideas, and stated "I don't feel suicidal in this moment, no, but do I have the thoughts? Yeah, sometimes. I don't have a plan, but anyone could figure out a way if they wanted to. I have a therapist though, and I tried to call her, and I want help, which is why I'm here." He denied any history of suicide attempts. He stated that his personal firearms were locked in his home and due to the issues at work, his work-related firearms were taken. He reported that he lives with his wife of 19 years and their children. The clinician noted that his speech was rapid, thoughts circumstantial, and affect congruent.

The Veteran submitted private therapy notes dated December 2019 to September 2020 in which his therapist noted the Veteran experienced impairments, including obsessional rituals interfering with his day-to-day life, lack of interest in doing anything, lack of patience at work and an inability to trust anyone. In a September 21, 2020 statement, the clinician noted that the Veteran was found not fit for duty due to his PTSD and elected to take Family Medical Leave Act leave due to the hostility he is experiencing, and he was exploring retirement. The clinician also noted the Veteran was experiencing marital issues with his wife. See Letter, J.B, LMFT.

During his January 2021 Board Hearing, the Veteran testified that around 2018, he began feeling that he was
December 2019 to September 2020 in which his therapist noted the Veteran experienced impairments, including obsessional rituals interfering with his day-to-day life, lack of interest in doing anything, lack of patience at work and an inability to trust anyone. In a September 21, 2020 statement, the clinician noted that the Veteran was found not fit for duty due to his PTSD and elected to take Family Medical Leave Act leave due to the hostility he is experiencing, and he was exploring retirement. The clinician also noted the Veteran was experiencing marital issues with his wife. See Letter, J.B, LMFT.

During his January 2021 Board Hearing, the Veteran testified that around 2018, he began feeling that he was endangering himself and the citizens by continuing his work due to nightmares, not sleeping, paranoia, difficulty concentrating and memory problems. He reported that he had been working in the field as a patrol officer, but he had to leave his job as of August 25, 2020, and has applied for involuntary retirement. He reported that he does not have any social life and was not participating in family outings, shopping, or going out to dinner. He indicated that he cannot have conversations with people because he was not able to look at them due to anxiety and paranoia and he has gone a long time not speaking to his mother.

August 2021 SSA records show the Veteran filed for benefits in January 2021 with a reported last day of work of August 25, 2020, when he left his job due to his disability. He reported symptoms of hypervigilance, poor concentration, memory problems and that he must force himself to be involved with his family, inability to be in crowds and get along with people, poor sleep and nightmares. He wrote that he knew that he should not have been working as of 2018, but decided "to stick it out because people would think that I was a failure." He reported that his paranoia, anxiety and other PTSD symptoms are so severe, even with his medications, that he does not feel safe in his own skin. He also reported that he was a police officer, including a field training officer supervising 15 people and a patrol officer.

In a December 2023, the Veteran provided a statement asserting that he experienced the following symptoms since at least 2014: anxiety, depression, unprovoked, anger and irritability with periods of violence, nightmares, flashbacks, paranoia, fear, panic attacks, delusions, auditory/visual hallucinations, trouble performing day to day tasks, and homicidal and suicidal ideations.

During his February 2024 Board Hearing, he testified that he worked fulltime until August 20, 2020 when he went on FMLA leave and retired on February 1, 2021. He stated that he had problems with superiors and the public, was confrontational and careless with safety and physically abusive, and had altercations with other employees and anger and paranoia issues while working, which led to investigations. He reported that he had homicidal and suicidal ideation while carrying his service weapon. He reported that memory loss affected his job. His wife testified that they have been married 18 years and that he had always had anger, memory loss, depression issues but they worsened in 2018.

During the July 2024 Board Hearing, the Veteran testified his PTSD symptoms have been the same since 2014, but he continued to work despite feeling that he was not functional in his job since 2018.

The Veteran reported that he worked fulltime (40 hours plus) a week until he stopped working on August 25, 2020, when he went on leave pursuant to the FMLA and officially retired on February 1, 2021. See August 2021 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940).

The Board assigns significant probative weight to the September 2015 and April 2020 VA examiners' findings along with the findings of his private and VA treating clinicians as they were written by clinicians who possess the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Similarly, the Board assigns great probative weight to the Veteran's and his wife's reports about his symptoms throughout the record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran and his wife
experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Similarly, the Board assigns great probative weight to the Veteran's and his wife's reports about his symptoms throughout the record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran and his wife are competent to report observing symptoms of the Veteran's psychiatric disability. Their reports are credible and probative as they are internally consistent.

Of note, the Veteran reported during the April 2020 VA Examination that he has experienced suicidal ideation and that he has used the Suicide Hotline in the past, which is contemplated by the 70 percent criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Throughout the appeal period, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. Although the Veteran asserted that he was in persistent danger of hurting self or others as he owned guns and carried them as part of his job, the Board finds that the record does not reflect that the Veteran was in persistent danger of hurting self or others. Throughout the appeal period, although he had some difficulty at work, he maintained his full-time employment as a police officer, denied homicidal and suicidal ideation in private and VA treatment records, and the record does not show that he engaged in any suicidal or homicidal behavior.

Further, throughout the record, the Veteran reported taking prescribed medications for his PTSD symptoms. In this case, the plain language of the criteria under the General Rating Formula for Mental Disorders specifically contemplates the effects of medication. Consequently, Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply, and the Board's evaluation of the Veteran's PTSD may include the ameliorative effects of medication. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016).

Upon careful review of the record as a whole, the Board finds that the level of impairment caused by the Veteran's symptoms more nearly approximates the level associated with a 70 percent rating throughout the period on appeal. In addition to the suicidal ideation discussed above, the Veteran experienced occupational and social impairment with deficiencies in most areas, but was not totally or occupationally impaired. Regarding social impairment, while the Veteran reported perceived isolation and the record shows significant difficulty with interpersonal relationships, he maintained a longterm marriage and family support system and reported that he a had network of other Marines that he often reaches out to for support. Regarding occupational impairment, while the record shows difficulty in his job as a police officer, including conflict, investigations and disciplinary action, he remained gainfully employed fulltime during the entire appeal period. Notably, the Veteran has consistently reported last working on August 25, 2020-less than one month before the effective date of the current 100 percent rating for his psychiatric disability. With this in mind, the Board finds that for the entire period on appeal, he was not totally socially and occupationally impaired.

Additionally, while the record shows the Veteran reported some symptoms contemplated by a 100 percent rating, to include gross impairment in thought processes and communication, persistent delusions or hallucinations, grossly inappropriate behavior, and memory loss for names of close relatives, the evidence overall does not demonstrate that these symptoms consistently reached the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating, and the Veteran was not totally occupationally or socially impaired.

In short, the severity, frequency, and duration of the Veteran's psychiatric symptoms resulted in the level of social and occupational impairment required for a 70 percent rating, but no higher, during the appeal period. Therefore, to this extent, the claim is granted.

3. Entitlement to an initial rating of 50 percent for migraine headaches associated with TBI, from January 8, 2014, to September 20, 2021.

The Veteran's migraine headaches disability is rated 0 percent from January 8, 2014, to April 8, 2015, 30 percent from April 9, 2015, to September 20, 2021,
totally occupationally or socially impaired.

3. Entitlement to an initial rating of 50 percent for migraine headaches associated with TBI, from January 8, 2014, to September 20, 2021.

The Veteran's migraine headaches disability is rated 0 percent from January 8, 2014, to April 8, 2015, 30 percent from April 9, 2015, to September 20, 2021, and 50 percent thereafter, the highest possible rating under 38 C.F.R. § 4.124a, DC 8100. He contends his disability warrants a rating of 50 percent during the entire appeal period. See July 2014 Notice of Disagreement (NOD); January 2021 Board Hearing Transcript.

The Board concludes that a rating of 50 percent, the highest available under DC 8100, is warranted from January 8, 2014, to September 20, 2021. The Board will not address the rating assigned from September 21, 2021, because the highest possible rating of 50 percent has already been granted for that period.

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).

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.

A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 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 migraine 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. 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, regarding severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

In his October 2014 statement, the Veteran asserted that he experiences six to ten migraines a month, lasting two to twelve hours, with symptoms of vomiting, nausea, disorientation, fatigue, extremely sensitive to light and noise, blurred vision, inability to process anything cognitively during attacks, and he cannot function sufficiently to perform his normal daily activity.

The Veteran submitted January 2015 private treatment records showing he was under a doctor's care for his headaches and had gone through therapy in the past but exceeded the recommended use of the prescribed medication because he was experiencing six to eight migraines a month. The clinician noted that he was instead placed on prophylactic medication, Propranolol. See Cooper Family Medicine treatment notes and Dr. M.E.L., Letter.

In March 2015, the Veteran provided a headache log
month, lasting two to twelve hours, with symptoms of vomiting, nausea, disorientation, fatigue, extremely sensitive to light and noise, blurred vision, inability to process anything cognitively during attacks, and he cannot function sufficiently to perform his normal daily activity.

In March 2015, the Veteran provided a headache log dated December 2014 to March 2015. The log showed severe headache pain, frequency from twice a month in December 2014, eight a month in January 2015, seven a month in February 2014, lasting six to twelve hours, and the Veteran's prescribed medication, propranolol, was generally not effective, and he had to leave work or call out sick or missed appointments and family outings during migraines.

In his March 2015 statement, he asserted that his migraines are prostrating, affecting his work, social life and relationship with his family. He reported six to eight headaches per month and during this time, he must lie face down, and he often vomits and cannot tolerate noise, light, people or anything other than complete silence in a dark room.

September 2015 private treatment records show the Veteran reported migraines that began as six to eight per month and had been brought down to four to five per month by medications; he missed work to because of migraine headaches, and they last from 12 to 26 hours with symptoms of nausea and fatigue, dizziness, and blurred vision, requiring rest in a dark room. A September 2015 private treatment note shows the Veteran's migraine medication was increased from 80 to 120 mg.

The Veteran was provided a VA Examination for PTSD in September 2015 during which he provided information about his migraine headaches. He reported experiencing six to eight headaches a month; and that he is prescribed Propranolol by his primary care physician for his headaches and the dosage has recently been increased. He also reported that he has missed time from work due to his recurrent headaches; and when he is experiencing severe headaches, he finds it difficult to tolerate interactions with others, which has affected his job attendance.

A VA examination for migraine headaches was conducted in September 2015. The Veteran reported constant headaches characterized by pulsating or throbbing head pain, on both sides of the head, which worsens with physical activity. The examiner noted symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. Duration of typical head pain was noted as more than two days, affecting both sides of the head, with characteristic prostrating attacks of migraine headache pain once every month, but the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.

In a September 2015 statement, the Veteran indicated that his headaches are completely prostrating and prolonged, occurring six to eight times a month, and have significantly impacted his life, his relationships with friends and family and created severe economic inadaptability. See NOD.

The Veteran underwent another VA examination in March 2020. The examiner noted migraine symptoms, including constant pulsating or throbbing head pain, that last less than one day, on both sides of the head, nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes, which worsen with physical activity. The examiner noted the Veteran's headaches impact his ability to work in that he experiences prostrating headaches six to eight times per month, needs access to a dark room during attacks, but did not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability.

In a May 2020 statement, the Veteran asserted that he experiences six to eight migraines a month that have caused him to lose wages because of leaving work early and calling out sick.

During another VA examination for headaches in November 2020, the Veteran reported he experiences headache pain on both sides of his head. The examiner noted that headache pain lasted one day with no non-headache symptoms and found the Veteran had characteristic prostrating attacks with less frequent attacks.

During his January 2021 Board Hearing, the Veteran testified that he experiences six to 10 headaches per month with sensitivity to light and sound, requiring him to leave work and rest in a dark room.

During the February 2024 Board Hearing, he testified that the frequency of his headaches is five to seven per month and has not changed since discharge from service. He also reported
month that have caused him to lose wages because of leaving work early and calling out sick.

During the February 2024 Board Hearing, he testified that the frequency of his headaches is five to seven per month and has not changed since discharge from service. He also reported that migraine pain can incapacitate him for one week at a time with symptoms of pain, nausea, and lack of appetite.

During the July 2024 Board Hearing, he testified that his migraine headaches symptoms are as bad today as they were in 2014.

Despite the September 2015, March 2020 and November 2020 VA examiners' findings that the Veteran does not have very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, the Veteran has consistently reported during VA examinations and in lay statements that his migraines occurred at worst six to 10 times per week with pain lasting from 12 to 36 hours, and that he also experiences nausea, vomiting, blurred vision, fatigue, dizziness and sensitivity to sound and light, all of which adversely impact his ability to work and think. Moreover, the Veteran has described experiencing migraine headaches that are so prostrating in nature he has had to lie down for hours in a darkened room, take pain medication, and end his workday early at times due to his inability to think, focus, or concentrate until the pain subsides. The Board finds no reason to doubt the credibility of the Veteran's lay statements regarding the frequency and severity of his migraine headaches, or their impact on his ability to work. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, as noted above, nothing in the diagnostic code requires that the Veteran be completely unable to work to qualify for a 50 percent rating. Pierce, supra.

Throughout the record, the Veteran has reported taking medications for his headache pain, including prophylactic medication. The alleviating effects of medication may not be considered in schedular ratings unless explicitly provided in the applicable schedular rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (noting that such improvement is "relevant to the appellant's overall disability picture"). Although the Veteran reported taking prophylactic medication for his migraines, he also reported that his headaches have occurred at the same rate and intensity since service when he was not on medications, and despite a progressive increase in his medication. See February 2014 Board Hearing Transcript. Here, the Board finds that the alleviating effects of medication have been discounted, and the Veteran's migraines nonetheless have resulted in very frequent prostrating attacks that are productive of severe economic inadaptability.

Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that a 50 percent initial rating for migraine headaches is warranted. Accordingly, the claim is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

4. Entitlement to a TDIU is granted effective August 25, 2020.

The Veteran seeks a TDIU. See September 2020 and August 2021 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940); January 2021 Board Hearing Transcript. His total disability rating is 90 percent from January 8, 2014, to September 21, 2020, and 100 percent thereafter. In addition, he has been granted SMC(s), effective September 21, 2020. The Board notes a 100 percent rating does not necessarily render a TDIU claim "moot" as it entirely depends on whether there is a possibility that TDIU will impact entitlement to a SMC award based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In this case, however, the Veteran has already been awarded SMC under 38 U.S.C. § 1114 from September 21, 2020. Accordingly, the grant of a 100 percent rating for the Veteran's service-connected psychiatric disability and the award of SMC
The Board notes a 100 percent rating does not necessarily render a TDIU claim "moot" as it entirely depends on whether there is a possibility that TDIU will impact entitlement to a SMC award based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In this case, however, the Veteran has already been awarded SMC under 38 U.S.C. § 1114 from September 21, 2020. Accordingly, the grant of a 100 percent rating for the Veteran's service-connected psychiatric disability and the award of SMC from September 21, 2020, render the issue of entitlement to TDIU moot from that date. As such, remaining before the Board is whether entitlement to a TDIU is warranted prior to September 21, 2020. The issue on appeal has been framed accordingly.

The Veteran contends that his service-connected disabilities severely impacted his ability to work prior to September 21, 2020. See September 2020 and August 2021 VA Form 21-8940; January 2021 Board Hearing Transcript.

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 because 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.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they can perform the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

From January 8, 2014, the Veteran had the following disabilities that were service connected: PTSD with unspecified depressive, anxious and alcohol use disorder (70 percent); migraine headaches (50 percent); lumbar degenerative disc disease (10 percent); tinnitus (
, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they can perform the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

From January 8, 2014, the Veteran had the following disabilities that were service connected: PTSD with unspecified depressive, anxious and alcohol use disorder (70 percent); migraine headaches (50 percent); lumbar degenerative disc disease (10 percent); tinnitus (10 percent); residuals of TBI (10 percent); right and left knee chondromalacia (10 percent each); left and right leg compartment syndrome (0 percent each); and bilateral hearing loss (0 percent), for a total combined 90 percent disability rating.

The question is whether the Veteran's service-connected disabilities, either alone or in combination, precluded him from obtaining or engaging in substantially gainful employment from January 8, 2014, to September 20, 2020.

The Board concludes, first, that a grant of TDIU is not warranted from January 8, 2014, to August 24, 2020, because the Veteran was gainfully employed throughout that portion of the period in question.

The record shows that the Veteran reported that he worked fulltime (40 hours plus) a week until he stopped working on August 25, 2020, when he went on leave pursuant to the Family Medical Leave Act (FMLA) and officially retired on February 1, 2021. See August 2021 VA Form 21-8940. He reported that he made $140,00 year in 2020, the most he had earned throughout his career. Id.

In Faust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). Based on the Veteran's employment and evidence that he worked fulltime as a police officer from January 8, 2014, to August 24, 2020, the Board finds that the Veteran maintained substantially gainful employment during the appeal period prior to August 25, 2020. Further, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). Although the Veteran asserted that he felt that he was not functional in his job beginning in 2018, he continued to be gainfully employed on a full-time basis, and there is no evidence that his salary was reduced at any point during the period in question. See January 2021 Board Hearing Transcript; September 2020 and August 2021 VA Form 21-8940.

The Board has also considered whether the Veteran's work as a police officer was marginal or in a protected environment.

Marginal employment is defined under 38 C.F.R. § 4.16, in part, as when a Veteran's earned annual income does not exceed the poverty threshold for one person. The poverty level established by the U.S. Department of Commerce, Bureau of the Census for a family of five $27,820 in 2014 and went up to $30,414 in 2020. https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The record shows that the Veteran's salary was $140,000 year in 2020-this was well above the poverty line and could not constitute marginal employment. Further, the record does not show, and the Veteran has not asserted, that his salary was at or below the poverty threshold at any time during the appeal period. Therefore, the Board finds that the Veteran was not engaged in marginal employment throughout the period on appeal.

The phrase "employment in a protected environment" within 38 C.F.R. § 4.16(a) "unambiguously means a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 124 (2024). Here, however, the Veteran's employment as a police officer was demonstrably not a lower-income position that was shielded from competition in the employment market. Similarly, considering the previous definition of "employment in a protected environment" provided by VA in Arline v. McDonough
was not engaged in marginal employment throughout the period on appeal.

The phrase "employment in a protected environment" within 38 C.F.R. § 4.16(a) "unambiguously means a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 124 (2024). Here, however, the Veteran's employment as a police officer was demonstrably not a lower-income position that was shielded from competition in the employment market. Similarly, considering the previous definition of "employment in a protected environment" provided by VA in Arline v. McDonough, 34 Vet. App. 238, 246 (2021) that employment in "a non-competitive workplace separated from workplaces in the open labor market and in which hiring, and compensation decisions are motivated by a benevolent attitude toward the employee" is not dispositive.

Here, the evidence of record shows that the Veteran worked full-time as a training police officer and supervisor and later as a patrol officer. See April 2020 Philadelphia VAMC Mental Health treatment notes: January 2021 Board Hearing; August 2021 SSA records. The record does not show, and the Veteran has not asserted, that his work environment was shielded in any way or that circumstances of his work or surroundings were maintained through guarantees.

Accordingly, the Board concludes that the evidence persuasively weighs against this claim, and the benefit of the doubt rule does not apply. As such, entitlement to a TDIU from January 8, 2014, to August 24, 2020, must be denied.

However, as of August 25, 2020, the Veteran has consistently reported that he left his job due to his multiple service-connected disabilities. As this contention is both consistent and supported by the record, and as the Veteran was in receipt of a combined 90 percent disability rating as of that date, with a PTSD rating of 70 percent, the Board finds that entitlement to a TDIU is warranted for this portion of the period on appeal. 38 CF.R. § 4.16. Thus, beginning August 25, 2020, the claim for entitlement to a TDIU is granted.

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Michel-Rossi, Mayerline

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.

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