Citation Nr: 1601154 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 12-29 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) with migraines for the period from April 13, 2011, to May 19, 2013. 2. Entitlement to an initial rating in excess of 70 percent for residuals of a traumatic brain injury for the period from May 20, 2013, to December 28, 2014; and in excess of 40 percent from December 29, 2014. 3. Entitlement to a compensable rating for migraines prior to May 20, 2013. 4. Entitlement to a compensable rating for major depressive disorder prior to May 20, 2013. 5. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, C.P. and C.B. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The Veteran served in the Oklahoma Army National Guard, including a period of active duty for training from May to September 1972. He thereafter served in the Army Reserve, with a period of active duty from February 1977 to August 1978. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for residuals of a traumatic brain injury with migraine headaches and assigned an initial 10 percent disability rating, effective April 13, 2011. The Veteran appealed the initial rating assigned. Before the appeal was certified to the Board, in a February 2015 rating decision, the RO, inter alia, assigned a 40 percent rating for residuals of a traumatic brain injury and assigned a separate 30 percent rating for migraines, both effective September 26, 2014. In addition, the RO denied service connection for depression. Thereafter, in a May 2015 rating decision, the RO revised its February 2015 rating decision on the grounds of clear and unmistakable error. The RO granted service connection for major depressive disorder due to traumatic brain injury and assigned an initial 50 percent rating for that disability, effective May 20, 2013. In addition, the RO assigned a 70 disability percent rating for residuals of traumatic brain injury from May 20, 2013, and a 40 percent rating from December 29, 2014. Finally, the RO assigned a 50 percent disability rating for migraines from May 20, 2013. Here, the Board notes that the Veteran has not challenged the 50 percent ratings assigned for his service-connected major depressive disorder and migraines from May 20, 2013. He has, however, argued that he is entitled to at least an overall 70 percent rating for the residuals of TBI from the date of his claim, April 13, 2011. Given the Veteran's contentions, the evidence of record, and the applicable legal criteria, the Board has characterized the issues on appeal as set forth on the cover page of this decision. Although the issues of entitlement to compensable ratings for the service-connected major depressive disorder and migraines prior to May 20. 2013, were not certified to the Board by the RO, because these disabilities stem from the initial award of service connection and are part and parcel of the service-connected residuals of traumatic brain injury, they are properly before the Board on appeal. In light of the favorable decision below granting the benefit sought by the Veteran, the Board finds that no prejudice has resulted from its actions. In reaching its decision below, the Board has reviewed the Veteran's VBMS folder, as well as multiple additional relevant records contained only in his Virtual VA folder. This additional evidence has also been reviewed by the RO. The Board notes that the record on appeal raises the issue of entitlement to service connection for bilateral hearing loss and tinnitus. The record currently available to the Board contains no indication that the AOJ has adjudicated these issues. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). In addition, the issue of entitlement to a total rating based on individual unemployability due to service-connected disability has been raised. A claim for a total rating based on individual unemployability, either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the interests of clarity, and to ensure full consideration of the claim, however, the Board has listed the issue separately. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (indicating the bifurcation of a claim is generally within the Secretary's discretion). The issue of entitlement to a total rating based on individual unemployability due to service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Since the award of service connection, the residuals of the Veteran's traumatic brain injury have included moderate impairment of memory, attention, concentration and executive functions resulting in moderate functional impairment. The most probative evidence establishes that his TBI residuals do not include severely impaired judgment; inappropriate social interactions most or all of the time; consistent disorientation to person, time, place or situation; severely decreased motor activity; severely impaired visual spatial orientation; a complete inability to communicate; or a persistently altered state of consciousness. 2. Since the award of service connection, the Veteran's service-connected migraines are shown to produce very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. 3. Since the award of service connection, the Veteran's service-connected depressive disorder has been manifested by symptoms such as disturbances of mood and motivation; depression and anxiety; chronic sleep impairment; fatigue; problems with irritability and anger; and difficulty in establishing effective relationships, productive of occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for residuals of a traumatic brain injury from April 13, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2015). 2. The criteria for an initial 50 percent rating for migraines from April 13, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015). 3. The criteria for initial 50 percent rating for major depressive disorder from April 13, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the VCAA. In a July 2011 letter issued prior to the initial decision on the claim, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2015); 38 C.F.R. § 3.159(b)(1) (2015). The letter included the additional notification requirements imposed in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board further notes that the issues adjudicated in this decision stem from an appeal of an initial disability rating assigned following an award of compensation. Once a decision awarding compensation and assigning a disability rating and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). The Board further notes that the record does not show, nor has the Veteran contended, that there are any notification deficiencies which have resulted in prejudice to him. See Goodwin v. Peake, 22 Vet. App. 128 (holding that the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran's service treatment records are on file, as are all available post-service clinical records which the Veteran has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2015). The Veteran has also been afforded a series of VA medical examinations in connection with his claim. 38 C.F.R. § 3.159(c) (4) (2015). The Board finds that the examination reports, together with the other evidence of record, contain the necessary findings upon which to decide these issues. See Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The Board also notes that the record does not show, nor has the Veteran contended, that his service-connected disabilities have increased in severity or otherwise materially changed since the most recent examinations were conducted. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issues now being decided. Background In pertinent part, the Veteran's service treatment records show that in December 1977, he sustained lacerations to his face after he was assaulted with a beer bottle. Clinical records of treatment following the injury show that the Veteran was diagnosed with a facial laceration and was treated with sutures. In January 1978, the Veteran was again assaulted; specifically, he was struck on the occipital portion of his head, rendering him unconscious. The diagnosis was head injury. In pertinent part, post service clinical records show that in September 2009, the Veteran sustained a possible brainstem transient ischemic attack with residuals including left-sided paresis, aphasia, and apraxia of speech. Clinical records also document a history of multiple other chronic disabilities, including depression, diabetes mellitus, and benign prostatic hypertrophy. On April 13, 2011, VA received the Veteran's claim of service connection for residuals of a traumatic brain injury with headaches and depression. In connection with his claim, the Veteran was afforded a VA medical examination in September 2011. He reported a history of two in-service head injuries which left him feeling dazed, confused, and seeing stars. The Veteran also reported a history of a stroke in 2009. The Veteran indicated that he currently experienced severe headache episodes on a weekly basis and that each episode lasted approximately 4 hours. During these episodes, he had to stay in bed and was unable to do anything. He rated the severity of his headaches as a 7 on a pain scale of 1 to 10. His complaints also included numbness and tingling in the left arm, confusion, slowness of thought, difficulties understanding directions, difficulties expressing himself, and tinnitus. He also complained of depression, anxiety, memory problems, dizziness, and difficulty sleeping. He denied mood swings and problems with attention or concentration. The examiner noted that the Veteran was able to brush his teeth, take a shower, and walk. He was unable to vacuum, drive a car, cook, climb stairs, dress himself, take out the trash, shop, perform gardening activities or push a lawn mower. The examiner indicated that the Veteran's inability to perform these physical activities was due to residuals of his 2009 stroke, which was unrelated to service or the in-service traumatic brain injury. On physical examination, the Veteran walked with an antalgic and unsteady gait. The examiner indicated that the Veteran's abnormal gait was secondary to stroke residuals. Neurological examination showed abnormality of the fifth cranial nerve manifested by a mild paralysis, reduced cerebellar function, as well as motor function abnormalities of the upper extremities. The examiner noted that these abnormalities were also due to stroke residuals and were not related to the traumatic brain injury. After examining the Veteran and reviewing the record, the examiner diagnosed traumatic brain injury secondary to in-service head injuries. The examiner indicated that the residuals of the Veteran's TBI included migraine headaches. He indicated that the Veteran's cranial nerve damage and neurological problems, however, were due to his nonservice-connected stroke. Finally, the examiner noted that the Veteran also exhibited bladder dysfunction, erectile dysfunction, and lower extremity neuropathy due to nonservice-connected benign prostatic hypertrophy and diabetes mellitus. At a September 2011 VA TBI examination, the Veteran reported a history of a head injury in 1977, as well as a second head injury in 1978, after which he was unconscious for two hours and dazed and confused for 90 days. He also reported a history of a stroke seventeen months prior. Cognitive screening performed in connection with the examination showed severe impairment of memory, attention, concentration, and/or executive functions. The examiner noted that these cognitive deficiencies resulted in a severe functional impairment. The examiner noted, for example, that the Veteran exhibited difficulty setting goals, planning, organizing, prioritizing, and making appropriate decisions. The examiner described the Veteran's executive functions as "quite impaired." Second, the examiner indicated that the Veteran experienced severely impaired judgment. For example, he was unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Third, the Veteran's social interactions were inappropriate most or all of the time. He experienced social anxiety. Fourth, the Veteran was noted to be often disoriented to time. Fifth, the Veteran exhibited severely decreased motor activity due to left sided apraxia. Sixth, he had moderate to severely impaired visual spatial orientation. For example, the examiner noted that the Veteran got lost even in familiar surroundings and was unable to use assistive devices such as a GPS. Seventh, the Veteran exhibited three or more subjective symptoms which moderately interfered with instrumental activities of daily living, family, work and close relationships. For example, the Veteran described severe daily headaches with photophobia and phonophobia, as well as fatigability. Eighth, the Veteran exhibited one or more neurobehavioral effects which interfered with workplace interaction or social interactions. For example, he exhibited dyscontrol and an angry affect. He had episodes in which he became enraged and screamed at people. Ninth, the Veteran exhibited communication difficulties caused by an inability to communicate at least half of the time but not all of the time. At times, the Veteran had to rely on gestures or other alternative modes of communication. He exhibited verbal apraxia and was unable to read or write. Tenth, the Veteran exhibited a normal state of consciousness. After examining the Veteran and reviewing the record, the examiner indicated that based on the cognitive screening, the Veteran demonstrated a cognitive impairment caused by both the in-service TBI as well as the post-service stroke. In that regard, the examiner noted that the Veteran had had severe memory problems prior to suffering his stroke. The examiner indicated, however, that he was unable to determine without resorting to mere speculation which of the remaining 10 facets of cognitive screening were related to, or secondary to, the TBI versus the stroke. The RO attempted to obtain clarification from the examiner. In a May 2012 addendum, the examiner indicated that although it was at least as likely as not that the Veteran's stroke worsened his memory problems, he remained unable to determine which of the 10 facets of cognitive impairment were more related to or secondary to, the Veteran's TBI versus his stroke. At a VA medical examination in October 2011, the Veteran reported vertigo and dizziness. He indicated that since his 2009 stroke, he had had significant problems with his balance. The examiner also noted that the Veteran exhibited rather significant diabetic neuropathy in his feet. The Veteran also complained of having had hearing loss since service as well as intermittent tinnitus since his stroke. After examining the Veteran and reviewing the record, the examiner attributed the Veteran's claimed vertigo and dizziness to his nonservice-connected diabetic neuropathy and the effects of his cerebrovascular accident. The examiner indicated that the Veteran exhibited sensorineural hearing loss with secondary tinnitus which was at least as likely as not related to his military noise exposure, not residuals of a traumatic brain injury. In a May 2012 rating decision, the RO granted service connection for residuals of a traumatic brain injury with migraine headaches and assigned an initial 10 percent disability rating, effective April 13, 2011. At a March 2013 hearing, the Veteran testified that he typically experienced migraine headaches three times daily. He indicated that during these episodes, he took his prescribed medications, put cold packs on his head, and went to bed in a dark room for approximately 4 hours. The Veteran testified that the frequency and severity of his headaches made his spouse constantly fear that he was having another stroke. He testified that as a result of his disabilities, he did not leave the house. He indicated that he was unable to drive or maintain clear mental acuity. At the hearing, two of the Veteran's acquaintances testified that they had witnessed the Veteran's incapacitating migraine episodes and described them as severe. At a May 2013 VA medical examination, the examiner noted that the Veteran had sustained a head injury in service and had been diagnosed as having a traumatic brain injury in 2012. He indicated that the Veteran's current TBI symptoms were migraines, difficulty with memory, and dizziness. With respect to the ten facets of TBI-related cognitive impairment and subjective symptoms, the examiner first indicated that the Veteran exhibited objective evidence on testing of a moderate impairment of memory, attention, concentration, or executive function. Second, the Veteran exhibited mildly impaired judgement and had difficulty making decisions. Third, the examiner indicated that the Veteran's social interaction was occasionally inappropriate. Fourth, the Veteran was occasionally disoriented to two of the four aspects of orientation. Specifically, he exhibited difficulty with person and situation. Fifth, he exhibited normal motor activity. Sixth, his visual spatial orientation was normal. Seventh, the Veteran reported three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family or other close relationships, to include blurry vision from migraines. Eighth, the Veteran reported one or more neurobehavioral effects which interfered with workplace or social interactions, to include difficulty getting along with others in a workplace environment. Ninth, the Veteran reported that he was able to communicate by spoken and written language and to comprehend spoken and written language. Tenth, the examiner indicated that the Veteran exhibited a normal state of consciousness. The examiner indicated that the Veteran also reported additional symptoms, including hearing loss and tinnitus, headaches, and a mental disorder. The examiner indicated that the residuals of the Veteran's TBI did not impact his ability to work. At a VA headache examination in June 2013, the Veteran reported a long history of migraine headaches which had increased in severity following his stroke. In addition to left-sided head pain, the Veteran experienced nausea, vomiting, and sensitivity to light. The examiner noted that the Veteran experienced very frequent characteristic prostrating attacks of migraine headache pain. At a VA mental health examination in December 2013, the examiner noted that the Veteran had a history of recurrent major depressive disorder. His symptoms included depressed mood, suspiciousness, chronic sleep impairment, loss of interest and disturbances in motivation, unintentional weight loss, insomnia, fatigue, feelings of worthlessness, and an intermittent ability to perform activities of daily living including maintenance of minimal personal hygiene. The Veteran reported that he often felt moody, had problems with anger and irritability, lacked motivation, and experienced feelings of sadness, hopelessness, low self-esteem, and indecisiveness. He often felt fatigued and had difficulty getting out of bed. He had difficulties with sleep. He attempted suicide in 1995 but denied suicidal ideation since that time. The Veteran also reported long term memory impairment which became more severe temporarily following his stroke. He indicated that he currently continued to experience problems with both long and short term memory, such as forgetting appointments and recent conversations. He also lost things frequently, such as his keys and mail. In addition to major depressive disorder, the examiner also noted that the Veteran had a history of traumatic brain injury. The examiner indicated that as a result of his TBI, the Veteran exhibited symptoms of short and long term memory loss, forgetfulness, poor concentration, and disorientation. He indicated that the Veteran's irritability could be related to either his TBI or his major depressive disorder. The examiner indicated that as a result of both conditions combined, the Veteran exhibited occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. He indicated that the Veteran's occupational impairment was attributable to his TBI while his social impairment was attributable to his major depressive disorder. The Veteran again underwent VA medical examination in December 2014. The examiner noted that the Veteran had sustained a head injury during service and had been diagnosed as having traumatic brain injury in 2013. He indicated that the current symptoms of the Veteran's TBI included short term memory loss, migraines, fatigue, difficulty concentrating, nausea, blurred vision due to migraines, sensitivity to light and sound, dizziness, and needing a GPS when traveling. With respect to the ten facets of TBI-related cognitive impairment and subjective symptoms, the examiner first indicated that the Veteran exhibited subjective mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words, and often misplacing items), as well as difficulty concentrating. There was no objective evidence on testing. Second, the Veteran exhibited normal judgement. Third, the examiner indicated that the Veteran's social interaction was routinely appropriate. Fourth, the Veteran was always oriented to time, place, person, and situation. Fifth, he exhibited normal motor activity. Sixth, his visual spatial orientation was mildly impaired in that he got lost in unfamiliar surroundings, had difficulty reading maps and following directions. He was able to use an assistive device such as a GPS. Seventh, the Veteran reported three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family or other close relationships. For example, the Veteran reported migraines, fatigue, nausea, blurred vision due to migraines, sensitivity to light and sound, and dizziness. Eighth, the Veteran reported no neurobehavioral effects. Ninth, the Veteran reported that he was able to communicate by spoken and written language and to comprehend spoken and written language. Tenth, the examiner indicated that the Veteran exhibited a normal state of consciousness. The examiner indicated that the Veteran exhibited no other residuals of TBI, nor did his TBI residual conditions impact his ability to work. At a VA headache examination in January 2015, the Veteran reported constant head pain localized to one side of his head. The pain increased with physical activity. He also experienced non-headache symptoms associated with his headaches, including nausea, vomiting, sensitivity to light, and changes in vision. The examiner noted that the Veteran experienced characteristic prostrating attacks of migraine headache pain more frequently than once per month. Indeed, the examiner described the Veteran's prostrating headache attacks as "very frequent" and indicated that he was unable to work during his headache attacks. In addition to the examination reports discussed above, the record on appeal contains VA clinical records dated from April 1995 to May 2015. In pertinent part, these records document treatment for multiple chronic disabilities, including depression, migraines, and intermittent memory impairment. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2015). The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2015). A claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of his earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993). Notwithstanding the provisions of 38 C.F.R. § 4.14, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994), 38 C.F.R. § 4.25 (2015). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence 'used to decide whether an [initial] rating on appeal was erroneous . . . .'" Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In exceptional cases where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111, 115 (2008). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Residuals of traumatic brain injury As set forth above, the RO has assigned a 10 percent rating for residuals of a traumatic brain injury with migraines for the period from April 13, 2011, to May 19, 2013. For the period from May 20, 2013, to December 28, 2014, the RO has assigned a 70 percent for residuals of a traumatic brain injury; and for the period from December 29, 2014, the RO has assigned a 40 percent rating for residuals of traumatic brain injury. The Veteran's service-connected migraines and depression have been separately rated as 50 percent disabling from May 20, 2013, and those disabilities are addressed below and are not addressed herein. Applying the facts in this case to the applicable legal criteria, the Board finds that an initial 70 percent rating for residuals of traumatic brain injury is warranted from the date of the claim, April 13, 2011 throughout the appeal period. The criteria for evaluating traumatic brain injury (TBI) are set forth in Diagnostic Code 8045. That Diagnostic Code provides rating criteria for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2015). 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 a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, 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 a traumatic brain injury. 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 38 C.F.R. § 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. Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is "total," then the overall percentage evaluation is based on the highest facet. A 70 percent evaluation is assigned if "3" is the highest level of evaluation for any facet. If the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent. A 10 percent evaluation is warranted when the highest level of evaluation for any facet is "1." Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is "0." 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (1). 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (2). 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (3). The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (4). The table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired 0 May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. As a preliminary matter, the Board notes that the Veteran has been shown to exhibit emotional/behavioral manifestations of the service-connected traumatic brain injury. Those manifestations, however, have been attributed to a distinct diagnosis, major depressive disorder, and have thus been separately evaluated below. Similarly, the Veteran exhibits significant migraines associated with his service-connected traumatic brain injury. Again, the manifestations associated with the Veteran's migraines have also been separately evaluated below, as a distinct disability. The symptoms contemplated in these disability ratings will therefore not be considered in rating the residuals of the Veteran's traumatic brain injury under Diagnostic Code 8045. This is consistent with the rule against pyramiding and the instructions of Diagnostic Code 8045 not to assign multiple ratings for the same symptoms. In addition, as set forth above, the Board notes that the Veteran exhibits multiple physical disabilities, including erectile dysfunction; gait and coordination dysfunction; hearing loss and tinnitus; and speech and other communication difficulties, including aphasia. As set forth above, however, the clinical evidence indicates that these conditions are etiologically related to conditions which are not associated with the service-connected traumatic brain injury residuals. As a result, the manifestations of those conditions may not be considered in establishing the rating for the service-connected residuals of a traumatic brain injury. 38 C.F.R. § 4.14 (2015). The evidence also fails to establish the presence of any other distinctly diagnosed disability related to the Veteran's TBI, such that evaluation of the Veteran's claim under a diagnostic code other than Diagnostic Code 8045 is necessary. Turning to the remaining impairment associated with the Veteran's TBI, the Board has considered the 10 facets discussed above. For memory impairment, the record shows that since the award of service connection, the Veteran has exhibited significantly impaired memory. Although the record contains some ambiguity as to whether the Veteran's memory impairment is due to his service-connected traumatic brain injury, his nonservice-connected stroke, or both, given the evidence of record, the Board concludes that reasonable doubt must be resolved in favor of the Veteran. See Mittleider v. West, 11 Vet. App. 181 (1998) (noting that when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the Veteran's favor and the symptoms in question attributed to the service-connected disability). In that regard, since the award of service connection, the Veteran has exhibited memory impairment which has been variously described by examiners as mild to severe. At the September 2011 VA TBI examination, the examiner characterized the Veteran's memory impairment as severe, but qualified that with the conclusion that his 2009 stroke had increased his preexisting TBI memory impairment. At the May 2013 VA medical examination, the examiner indicated that the Veteran exhibited a moderate impairment of memory, attention, concentration, and executive function. At the most recent VA medical examination in December 2014, the examiner described the Veteran's memory impairment as mild. Particularly when these examination reports are considered in connection with contemporaneous VA treatment records which note little to no memory impairment, the Board finds that the overall level of memory, attention, concentration, and executive function impairment attributable to the Veteran's TBI more nearly approximates a level 3, representing objective evidence on testing of moderate impairment of memory, concentration, or executive functions resulting in moderate functional impairment. Under Diagnostic Code 8045, a minimum 70 percent disability rating is therefore warranted. The Board further finds that a rating in excess of 70 percent is not warranted under Diagnostic Code 8045 as none of the other facets have been shown to warrant a level higher than 3. For example, the Veteran's judgment, though periodically impaired, has not been shown to more nearly approximate severe impairment for routine and family decisions as a result of the TBI. He has not been shown to lack the ability to judge when to avoid dangerous situations due to his service-connected TBI. Similarly, the Veteran's social interactions, while also impaired, have not been found to be inappropriate most or all of the time. The Veteran has been shown to be largely oriented to person, time, place and situation. The record shows that he is not often disoriented and he has not contended otherwise. Similarly, although he exhibits impaired motor activity due to apraxia, that impairment has been attributed to his nonservice-connected stroke and has not been shown to be associated with the service-connected TBI. His visual spatial orientation is impaired, but does not rise to the level of severe impairment. The Veteran is not unable to touch or name his own body parts, identify the relative position in space of two different objects or find his way from one room to another. Regarding subjective symptoms, the Veteran is already in receipt of a separate rating for his service-connected migraines, with includes his complaints of dizziness, nausea, vomiting, visual changes, and hypersensitivity to light. Next, the evidence shows the Veteran's communications are not totally impaired. Rather, he is generally able to communicate by written and spoken language or by using gestures. Finally, his consciousness is consistently normal, with no indication of a persistently altered state, such as a vegetative state, minimally responsive state, or a coma. As noted, 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. In the present case, an initial 70 percent rating is warranted for the reasons discussed above. A rating in excess of 70 percent is not warranted at any time during the appeal as the Veteran has not been shown to exhibit a total level of impairment for any facet. The Board has also considered Diagnostic Code 8045's instruction to consider the Veteran's entitlement to special monthly compensation. The record does not show, nor does the Veteran contend, that his TBI, in and of itself, results in sensory impairments, impairment of reproductive functionality, or the need for aid and attendance. Migraine headaches As set forth above, the RO has assigned a 50 percent rating for the Veteran's service-connected headaches, from May 20, 2013. This is the maximum rating available for headaches under the applicable diagnostic code and the Veteran has not challenged that rating. He has, however, argued that he is entitled to a compensable rating prior to May 20, 2013. Applying the facts in this case to the applicable legal criteria, the Board finds that an initial 50 percent rating for migraines is warranted from April 13, 2011, the date of the claim. Migraines headaches are evaluated under the criteria set forth at 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015). Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two 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. The maximum 50 percent rating under Diagnostic Code 8100 is warranted for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. In this case, since the award of service connection for migraines, the Veteran has consistently reported in clinical settings and in hearing testimony that he has frequent headache attacks, occurring on a weekly to daily basis. His headache episodes are severe and prostrating in nature. He is unable to function during these episodes. The Board finds the Veteran's statements in this regard to be credible and assigns them significant probative value. The Board further notes that his statements regarding the severity of his headache attacks were corroborated by two of his acquaintances who have witnessed these attacks. In addition, since the effective date of the award of service connection, repeated VA examiners have consistently indicated that the Veteran's service-connected migraines are shown to result in very frequent, completely prostrating and prolonged attacks. In light of this record, the Board concludes that the severity and frequency of the Veteran's service-connected migraines meets the rating criteria for an initial 50 percent rating under Diagnostic Code 8100, from April 13, 2011. For the reasons set forth above, the Board finds that an initial 50 percent schedular rating for migraines from April 13, 2011, is warranted. Again, this is the maximum schedular rating available. Major depressive disorder As set forth above, the RO has assigned a 50 percent rating for the Veteran's service-connected major depressive disorder, from May 20, 2013. The Veteran has not challenged that rating. He has, however, argued that he is entitled to a compensable rating prior to May 20, 2013. Applying the facts in this case to the applicable legal criteria, the Board finds that an initial 50 percent rating for major depressive disorder is warranted from April 13, 2011, the date of the claim. Major depressive disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9434 (2015). Under Diagnostic Code 9434, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing effective work and social relationships. A 70 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted where there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms. A Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In this case, the RO has assigned a 50 percent rating for the Veteran's major depressive disorder from May 20, 2013, based on symptoms such as disturbances of mood and motivation; depression and anxiety; chronic sleep impairment; fatigue; problems with irritability and anger; and difficulty in establishing effective relationships, which have been shown to produce occupational and social impairment with reduced reliability and productivity. Upon review of the record, however, the Board finds that the Veteran's depressive disorder symptoms have been present for the entire period on appeal and the separate 50 percent rating should therefore be effective from April 13, 2011, the date of receipt of the claim. The Board notes that the record does not show, nor does the Veteran contend, that the criteria for a rating in excess of 50 percent for major depressive disorder have been met for any period of the claim. As noted by VA examination, the primary effect of the Veteran's depression is social. Indeed, the 2013 VA examiner found that the combined effect of the TBI and depression was deficiencies in most areas, but that the TBI caused the disorientation, memory loss, and poor concentration. Thus, as pyramiding is not permitted, those deficiencies may not be considered and a 70 percent evaluation is not for assignment. Extraschedular Evaluation The Board has considered the provisions of 38 C.F.R. § 3.321(b), providing for an extraschedular award when a claimant presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. See Thun v. Peake, 22 Vet. App. 111, 117 (2008). After reviewing the record, however, the Board finds that there is no basis for further action on this question as there is no indication of an exceptional disability picture such that the schedular evaluation for the service-connected residuals of traumatic brain injury, including headaches and depression, are inadequate. First, the Veteran's depression symptoms are reflected in the rating criteria, which contemplate all symptomatology that cause occupation or social impairment. Likewise, the Veteran's residuals of a TBI symptoms are reflected in the rating criteria, which contemplate impairment of memory, attention, concentration, or executive functions impairment of judgment impairment of social interaction, impairment of orientation, impairment of motor activity, impairment of visual spatial orientation, subjective symptoms, neurobehavioral effects, impairment of communication, and impairment of consciousness. Finally, the Veteran's migraine headaches do not cause additional symptoms other than those reflected in the rating criteria, namely, frequent, prostrating attacks that cause economic inadaptability. The Veteran and his representative have not argued that there are symptoms due to these service-connected disabilities that are not encompassed by the criteria and the record does not indicate any such symptoms. Thus, absent additional evidence that the Veteran's residuals of TBI, depression, and migraine headaches are unusual or exceptional, referral for consideration of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this regard, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2015). ORDER Entitlement to an initial 70 percent rating for residuals of a traumatic brain injury from April 13, 2011 throughout the period on appeal, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 50 percent rating for migraines from April 13, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 50 percent rating for major depressive disorder from April 13, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND After reviewing the record, the Board finds that additional action is necessary with respect to the issue of entitlement to TDIU. In particular, in light of the evidence of record, a VA medical examination is necessary to determine if the combined effects of the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. Obtain records from the Oklahoma City VAMC for the period from June 2015 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, afford the Veteran an examination to determine whether the combined effects of all of his service-connected disabilities preclude him from obtaining or maintaining substantial gainful employment. Access to records contained in the Veteran's Virtual VA and VBMS files should be provided to the examiner for review in connection with the examination. The report from this survey must include comments on the Veteran's day-to-day functioning and the degree of social and industrial impairment that the Veteran experiences as a result of his service-connected disabilities. The surveyor should consider the Veteran's education and occupational experience, irrespective of age and any nonservice-connected disorders. The surveyor should address the functional effects of each of the service-connected disabilities, in conjunction, so that the Board may make a determination of unemployability. The surveyor is not limited to the foregoing instructions, and may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected residuals of traumatic brain injury, migraines, major depressive disorder, residuals of a ruptured right Achilles tendon, right ankle strain, and left temple scar render him unable to secure and follow a substantially gainful occupation. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs