Citation Nr: 1323458 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-23 055A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a mild traumatic brain injury (TBI) with mild cognitive deficits without evidence of multi-infarct dementia associated with brain trauma, prior to January 19, 2011. 2. Entitlement to an rating in excess of 40 percent for a TBI with mild cognitive deficits without evidence of multi-infarct dementia associated with brain trauma, from January 19, 2011. 3. Entitlement to an initial rating in excess of 30 percent for migraine headaches. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1996 to August 1998, and from September 2002 to June 2007. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision in which the RO, inter alia, granted the Veteran's claim for service connection for residuals of a mild TBI and awarded an initial, 10 percent rating, effective June 5, 2007, the day following the Veteran's release from active duty. In September 2011, the Veteran and his wife testified during a hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of that hearing has been associated with the claims file. In August 2012, the Board, inter alia, remanded the claim for an increased rating for a mild TBI, to the Appeals Management Center (AMC) for additional development and adjudication. In addition, the Board determined that the question of whether the Veteran was entitled to a separate rating for migraines headaches was considered a component of the claim for an increased rating for a mild TBI, and instructed that consideration of such a separate rating be conducted on remand. In a March 2013, the AMC, inter alia, awarded a separate 30 percent rating for migraine headaches, effective October 23, 2008. In addition, a 40 percent rating for a mild TBI was awarded, effective January 19, 2011. As the Veteran has disagreed with the initial rating assigned following the award of service connection for a mild TBI, as well as the award of a separate rating for migraine headaches, the Board has characterized these claims in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the AMC granted a higher initial rating the Veteran's TBI and a separate rating for migraine headaches during the pendency of the appeal, inasmuch as a higher rating for these disabilities are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims for higher ratings remain viable on appeal. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). A review of the Virtual VA claims processing system reveals VA treatment records dated through November 2012; the March 2013 supplemental statement of the case (SSOC) notes review of such records. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Pertinent to the original January 2008 claim for service connection, and for the period prior to January 11, 2011, the Veteran described his mild TBI as stable and to be no more than moderate in severity; however, multi-infarct dementia associated with brain trauma or TBI residuals rated as a "2" or higher in one or more facets were not shown. 3. Pertinent to the original January 2008 claim for service connection, the Veteran's migraine headaches have manifested as daily headaches and prostrating attacks occurring between twice a week and once a month; however, they have not been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. The schedular criteria have been adequate to rate the Veteran's mild TBI and migraine headaches at all times pertinent to this appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating for a mild TBI, rated as 10 percent disabling prior to January 19, 2011, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045 (2007, 2012) (prior and since October 23, 2008). 2. The criteria for an initial rating for a mild TBI, rated as 40 percent disabling beginning on January 19, 2011, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045 (2007, 2012) (prior and since October 23, 2008). 3. The criteria for a rating in excess of 30 percent rating for migraine headaches are not met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045 (2007, 2012) (prior and since October 23, 2008), 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A February 2008 pre-rating letter provided pertinent notice to the Veteran in connection with what were then claims for service connection for a TBI and migraines with head pain. That letter indicated what information and evidence was needed to substantiate each claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided him with general information pertaining to VA's assignment of disability ratings and effective dates, in accordance with Dingess/Hartman. After the awards of service connection, and the Veteran's disagreement with the initial rating assigned, a May 2009 letter set forth applicable criteria for higher ratings for residuals of a TBI (the timing and form of which suffices for Dingess/Hartman). Although no notice letter specific to the claim for higher rating for the migraine headaches has been provided, on these facts, the absence of such notice is not shown to prejudice the Veteran. As indicated, he has been furnished with notice of the applicable rating criteria, and afforded opportunity to respond. As explained below, there is no indication that there is any outstanding evidence pertinent to the claim. Also, pertinent notice consistent with Pelegrini and certain requirements of Dingess/Hartman has been provided. Moreover, because both claims for higher rating are being denied, no higher the claim for higher rating is being, or is to be, assigned; hence, there can be no prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the report of the VA examinations, as well as the Veteran's VA treatment records (as requested by the Board in its August 2012 remand). See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also of record and considered in connection with the appeals are various written statements provided by the Veteran, his representative and other acquaintances, in support of his claim. The Board finds that no further RO action on either claim, prior to appellate consideration, is required. The Board points out that that the Veteran was provided the opportunity to orally set forth his contentions during his hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the September 2011 hearing, the undersigned enumerated the issues on appeal. The Veteran provided testimony regarding his TBI and headache symptoms, including how they impact his ability to function at work. The hearing transcript also reflects appropriate exchanges between the Veteran, his representative, and the undersigned pertaining to the Veteran's current treatment and the bases for denial of the claims. In addition, the claims were remanded after the hearing testimony revealed the presence the outstanding treatment records. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A 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). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Each following analysis is therefore undertaken with the possibility that "staged rating" (assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted. As the RO has already assigned staged ratings for the Veteran's mild TBI, the Board will consider the propriety of the rating at each stage, as well whether any further staged rating is warranted. Historically, the Veteran's mild TBI has been assigned a rating under Diagnostic Code 8045. Prior to October 23, 2008, Diagnostic Code 8045 provided that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8911). Purely subjective complaints such as headaches, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective prior to October 23, 2008). The criteria for rating TBI were revised during the pendency of this appeal. See 73 Fed. Reg. 54693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008 but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). Revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A veteran whose residuals of TBI are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). A. Residuals of a TBI The Veteran contends that his mild TBI warrants a 40 percent rating throughout the appeal period. The relevant evidence in the record includes the Veteran's VA treatment records, as well as a reports of VA examinations conducted in February 2008 and June 2009. This evidence establishes that there was no multi-infarct dementia associated with brain trauma found on objective examination and that the highest level of severity for any facet of cognitive impairment was zero. These findings are indicative of a level of impairment consistent with no more than the 10 percent rating assigned for a mild TBI prior to January 11, 2011. Considering the pertinent facts in light of the applicable rating criteria, the Board finds that, at no pertinent point prior to January 19, 2011 did the Veteran's mild TBI warranted a rating higher than the assigned 10 percent rating. As regards to the former Diagnostic Code 8045, the relevant evidence is negative for, and the Veteran has not alleged, suffering from multi-infarct dementia associated with brain trauma. A rating in excess of 10 percent is therefore not assignable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective prior to October 23, 2008). As regards to the revised Diagnostic Code 8045, for the period beginning on October 23, 2008 and prior to January 11, 2011, a rating in excess of 10 percent would require a "total" evaluation to be assigned for one or more facets or a "2" to be assigned as the highest level of facet. The Veteran's judgment, motor activity and visual activity were found to be normal in the June 2009 VA examination or there were no complaints of impairment to memory, attention, concentration and executive functions. In addition, the June 2009 VA examiner found that the Veteran's social interaction was found to be routinely appropriate, he was found to always be oriented to person, time, place and there were no subjective symptoms or neurobehavioral effects which interfered with work, activities of daily living or family or other close relationships. Moreover, a February 2008 VA examiner found the Veteran to be alert and oriented, with excellent past, recent and immediate memory, and with no impairments in motor activity or visual activity noted. As detailed below, the highest level of severity for any facet was "0" under the revised criteria and a rating in excess of 10 percent is therefore not warranted for this appellate period. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. A level of severity of "0" has been assigned for the Memory, attention, concentration, executive functions facet, indicating that an examiner has found evidence such as no complaints of impairment of memory, attention, concentration, or executive functions. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. A level of severity of "0" has been assigned for the Judgment facet, indicating that an examiner has found evidence of normal judgment. A higher level of severity of "1" is not warranted unless an examiner finds evidence of mildly impaired judgment, including symptoms such as for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A level of severity of "0" has been assigned for the Social interaction facet, indicating that an examiner has found evidence that social interaction is routinely appropriate. A higher level of severity of "1" is not warranted unless an examiner finds evidence that social interaction is occasionally inappropriate. A level of severity of "0" has been assigned for the Orientation facet, indicating that an examiner has found evidence such as always oriented to person, time, place, and situation. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. A level of severity of "0" has been assigned for the Motor activity (with intact motor and sensory system) facet, indicating that an examiner has found evidence of motor activity normal. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). A level of severity of "0" has been assigned for the Visual spatial orientation facet, indicating that an examiner has found evidence of normal. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system). A level of severity of "0" has been assigned for the Subjective symptoms facet, indicating that an examiner has found evidence of subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. A higher level of severity of "1" is not warranted unless an examiner finds evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. A level of severity of "0" has been assigned for the Neurobehavioral effects facet, indicating that an examiner has found evidence of one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects. A higher level of severity of "1" is not warranted unless an examiner finds evidence of one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A level of severity of "0" has been assigned for the Communication facet, indicating that an examiner has found evidence such as able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. The evaluation assigned for cognitive impairment and other residuals of TBI not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facets. The evaluation assigned is 0 percent based upon the highest severity level of "0," which was assigned for the following facets: memory, attention, concentration, executive functions; judgment; social interaction; orientation; motor activity (with intact motor and sensory system); visual spatial orientation; subjective symptoms; neurobehavioral effects; communication. In assessing the severity of the disability 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 as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (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 a higher rating for this disability pursuant to any applicable criteria at any point pertinent to this appeal. The Board has also considered the Veteran's assertions as to the severity of his mild TBI, and in no way discounts the Veteran's asserted difficulties or his assertions that his disability should be rated higher. However, it must be emphasized that the assignment of disability ratings for residuals of a TBI are derived by a mechanical application of the rating schedule to the severity for each facet of cognitive impairment are obtained. Hence, the Board has no discretion in this matter and must predicate its determination based on the results of the studies of record. See, cf. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the neuropsychiatric results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As for whether a rating greater than 40 percent is warranted beginning on January 19, 2011, the Board notes that the Veteran, in his July 2011 statement, specifically argued that his mild TBI should be rated as 40 percent disabling. In addition, the Veteran's representative argued in its May 2013 Informal Hearing Presentation that the assigned 40 percent rating should be continued throughout the appellate period. Thus, the Board does not have jurisdiction over whether a rating in excess of 40 percent beginning on January 19, 2011 is warranted. See AB, 6 Vet. App. at 39; see also Hamilton v. Brown, 4 Vet App. 528, 544 (1993). B. Migraine Headaches The Veteran contends that his migraine headaches warrant a separate compensable rating throughout the appeal period. The relevant evidence in the record includes the Veteran's VA treatment records, as well as a reports of VA examinations conducted in February 2008 and November 2012. This evidence establishes that the Veteran's had prostrating attacks an average of once a month over the last several months. These findings are indicative of a level of impairment consistent with no more than the 30 percent rating assigned for migraine headaches, as of October 23, 2008. Considering the pertinent facts in light of the applicable rating criteria, the Board finds that, at no point pertinent to the claim for increase has the Veteran's migraine headaches warranted a rating higher than the current 30 percent rating. In addition, his separate rating for migraine headaches has been assigned a rating under Diagnostic Code 8100. Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Such headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a. An August 2007 VA treatment note reflects the Veteran's complaints of two types of headaches, including a baseline of chronic headaches and a vascular headache that occurred once per week. This vascular headache was unilateral, usually to the left side, radiated into the periorbital region, and was associated with photosensitivity, sound sensitivity, light sensitivity and irritability. Impressions of chronic possible post-concussive headaches and a vascular component to his unilateral headaches were made. A February 2008 VA examination report reflects the Veteran's complaints of daily headaches that affected his entire head, with pain rated as 2-4/10. He also reported severe headaches that occurred three to four times per month, lasted for several hours and were associated with photophobia, dizziness and nausea. There were no known precipitating factors and alleviating factors included the use of medication. He estimated that 50 percent of his headaches were prostrating in nature with no ordinary activity possible. A February 2009 VA treatment note reflects the Veteran's reports of daily headaches, with pain rated as 2-3/10, that decreased in severity with medication. He reported that his crushing headache occurred approximately two times per week and that medication usually worked to treat this headache. A May 2011 VA treatment note reflects the Veteran's reports of severe, piercing, bi-frontal headaches that occurred approximately one time per month as well as constant low-grade frontal pain. In September 2011, the Veteran testifies that he missed one day of work every month or two due to headaches. These attacks last for several days. He used medication to treat such attacks if they occurred while at work and either must seclude himself in his office or go home if they are severe. The Veteran's wife did not offer testimony as to his migraine headaches. A November 2012 VA examination report reflects the Veteran's reports of monthly prostrating attacks of migraine pain; very frequent prostrating and prolonged attacks of migraine headache pain or non-migraine headache pain were denied. Under Diagnostic Code 8100, the Veteran's migraine headaches manifested as constant daily headaches that were not prostrating. He reported prostrating headaches that occurred monthly in November 2012 and May 2011 and that they occurred approximately two times per week in February 2009. In addition, he reported that they occurred two times per month in February 2008. Such reports comport with the rating criteria consistent with the assignment of a 30 percent rating, and there is no persuasive evidence upon which to award the 30 percent rating from an earlier date. Moreover, at no time pertinent to this appeal has evidence demonstrated very frequent and prolonged migraines resulting in severe economic inadaptability, as required for a 50 percent rating. Significantly, the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). See Melson v. Derwinski, 1 Vet. App. 334 (1991); compare with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). In this regard, the Board acknowledges that the Veteran's headaches appear to be frequent. However, evidence reflects that the Veteran is still employed full-time, albeit with absences from the job; but at this point with no immediate threat to his continued employment. While the September 2011 letter from the Veteran's employer indicated that he was sent home from work when his headaches were severe, the frequency of such actions was not detailed. Hence, at this point there is no evidence of severe economic inadaptability due to headaches in this case. In addition, both the Veteran and his representative have argued that the Veteran's migraine headaches warrant a compensable rating throughout the appellate period, i.e., for the period prior to October 23, 2008. However, under the rating criteria in effect prior to October 23, 2008, purely subjective complaints related to a TBI such as headaches were to be rated as no more than 10 percent disabling and was not be combined with any other rating for brains disease due to brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective prior to October 23, 2008). The revised rating criteria which permitted separate ratings for residuals of a TBI such as cognitive impairments and for physical manifestations such as headaches were effective October 23, 2008. For claims received by VA prior to that effective date, a veteran was to be rated under the old criteria for any periods prior to October 23, 2008 but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008), Note (5); see also VBA Fast Letter 8-36 (October 24, 2008). This statute is clear and specific, and the Board is bound by it. Therefore, a compensable rating for migraine headaches cannot be awarded prior to October 23, 2008. In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno, supra and Grottveit, supra. However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones, supra. As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating for this disability pursuant to any applicable criteria at any point pertinent to this appeal. C. Other Considerations Additionally, the Board finds that at no pertinent point has either disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1)(cited in the June 2009 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. §3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. §3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate each disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate either disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the Veteran reported current employment as a government contractor in connection with July 2011 statement and the record includes nothing to indicate that Veteran is not still employed. As there is no suggestion of actual or effective unemployment, consideration of a TDIU in connection with either higher rating claim on appeal is not warranted. For all the foregoing reasons, the Board finds that, there is no basis for any further staged rating of the mild TBI or for a staged rating for migraine headaches, and that each claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for either disability, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for a mild TBI with mild cognitive deficits without evidence of multi-infarct dementia associated with brain trauma, prior to January 19, 2011, is denied. A rating in excess of 40 percent for a mild TBI with mild cognitive deficits without evidence of multi-infarct dementia associated with brain trauma, from January 19, 2011, is denied. An initial rating in excess of 30 percent for migraine headaches is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs