Citation Nr: 18159194 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-53 474 DATE: December 18, 2018 ORDER The rating reduction for migraine headaches from 50 percent to 10 percent was not proper and the 50 percent rating is restored. The rating reduction for anosmia from 10 percent to 0 percent was not proper and the and the 10 percent rating is restored. The rating reduction for traumatic brain injury (TBI) from 40 percent to 0 percent, effective January 1, 2016 was proper as the original grant of 40 percent was based on a clear and unmistakable error. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence did not demonstrate overall improvement in the service-connected migraine headaches. 2. The preponderance of the evidence did not demonstrate overall improvement in the service-connected anosmia. 3. The previous 40 percent rating for TBI was awarded in an April 2012 rating decision which contained a clear and unmistakable error (CUE) due to the rating criteria for TBI being incorrectly applied; specifically, at the April 2009 VA examination, a complaint of mild loss of memory, attention, concentration or executive functions, but without objective evidence on testing was identified; this correlates with a level of severity of “1” for that TBI facet under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” Table, not “2”, as was erroneously indicated in the August 2009 rating decision; as the medical evidence or record showed that headaches were the only residual shown to be due to the TBI and there was no evidence of a severity level of “2” for any other TBI facet at the time the April 2012 rating decision was rendered. 4. The evidence is evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities throughout the relevant appeal period. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the Veteran’s service-connected migraine headaches from 50 percent to 10 percent was not proper and the 50 percent disability rating is restored from March 10, 2015. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.124a, Diagnostic Code 8100. 2. The reduction of the disability rating for the Veteran’s service-connected anosmia from 10 percent to 0 percent was not proper and the 10 percent disability rating is restored from June 29, 2015. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.87a, Diagnostic Code 6275. 3. The rating reduction for TBI from 40 percent to 0 percent, effective January 1, 2016 was proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.7, 4.118, Diagnostic Code 8045. 4. The criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in May 2015, August 2015, and October 2015. With respect to the issues on appeal for migraine headaches and anosmia, the Agency of Original Jurisdiction (AOJ) incorrectly phrased the issues as increased rating for migraine headaches and anosmia instead of whether the reduction in the ratings were proper in the statement of the cases dated in October 2016. In this regard, the Veteran filed a claim for TDIU in March 2015. As part of the TDIU claim, the AOJ evaluated each service-connected disability and determined in a May 2015 rating decision that a reduction from 50 percent to 10 percent was warranted for migraine headaches and in an August 2015 rating decision that a reduction from 10 percent to 0 percent was warranted for anosmia. Although in the Veteran’s notice of disagreements dated in June 2015 and September 2015, the Veteran checked the box that he disagreed with the evaluations for his migraine headaches and anosmia, the Veteran later clarified that he disagreed with the VA’s reduction of his ratings for his residuals of brain injury to include migraine headaches and anosmia. In addition, the Veteran asserted in a statement submitted with the October 2016 substantive appeal that he disagreed with VA’s cuts to his brain injury problems. An increased-rating claim is different from a rating-reduction claim since, in an increased-rating claim, the claimant has the burden of showing the disability at issue has worsened, whereas in a rating-reduction claim VA has the burden of showing the disability at issue instead has improved. The pleadings and burdens of proof differ depending on whether the claim involves a requested increase or disputed reduction. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (“The BVA incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating; in fact and in law, the issue presented to the BVA, and to this Court, is not whether the Veteran was entitled to an increase but whether the reduction of appellant’s rating from 100% to 10% was proper); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (“This is a rating reduction case, not a rating increase case.”). If a claim is appealed to the Board on the basis of a reduction only, there is no need to also discuss whether ratings in excess of the reduction are warranted. In this case, the propriety of the reductions for migraine headaches and anosmia are at issue in this appeal. Accordingly, consistent with the evidence of record, the Board has recharacterized the issues to whether the reductions for service-connected migraine headaches and anosmia were proper. Rating Reduction Claims The Veteran submitted a claim of entitlement to a TDIU in March 2015. He was provided with VA examinations in May 2015, June 2015, and July 2015. As a result of the evidence obtained from the examinations, the AOJ reduced the Veteran’s service-connected migraine headaches from 50 percent to 10 percent, effective March 10, 2015, and anosmia from 10 percent to 0 percent, effective, June 29, 2015. The AOJ also reduced the Veteran’s service-connected TBI from 40 percent to 0 percent, effective January 1, 2016, based on clear and unmistakable error in the April 2012 rating decision. The Veteran appealed these decisions asserting that his disabilities should not have been reduced. In general, prior to reducing a veteran’s disability rating, VA is required to comply with pertinent VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. When reduction in the rating of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. Rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. In this case, at the time the rating reductions took effect for the Veteran’s service-connected migraine headaches, anosmia, and TIBI, the prior ratings were in effect for less than five years. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (finding that duration of rating is measured from effective date of actual reduction). Thus, the various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, does not apply in this appeal. VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability. See Schafrath, 1 Vet. App. at 594. Furthermore, VA regulation 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Pursuant to these provisions, the AOJ and Board are required in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. See Schafrath, 1 Vet. App. at 594 (“these requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition.”). Finally, 38 C.F.R. § 4.10 establishes that “[t]he 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” and 38 C.F.R. § 4.2 directs that “[e]ach disability must be considered from the point of view of the veteran working or seeking work.” Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. Headaches The AOJ implemented the rating reduction of the Veteran’s migraine headaches from 50 percent to 10 percent, effective March 10, 2015 in a May 2015 rating decision. The AOJ did not issue a proposed rating decision or provide the Veteran with notice of this reduction. However, the Veteran’s overall compensation was not reduced as a result of the rating reduction for migraine headaches. Prior to the May 2015 rating decision implementing the reduction from 50 percent to 10 percent for migraine headaches, the Veteran’s combined disability rating was 80 percent, effective from July 31, 2014. Following the May 2015 rating decision, the Veteran’s combined disability rating was 80 percent. As there was no reduction in overall compensation, the provisions of 38 C.F.R. § 3.105 do not apply. See 38 C.F.R. § 3.105 (e); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty day notice before making a disability rating decision effective if the decision did not reduce the overall compensation paid to the Veteran); see also VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply). Accordingly, the Board finds no error in the AOJ’s notification procedures with respect to the reduction. As an initial matter, the Board notes that the rating code sheets note that the Veteran is service-connected for migraine headaches. However, the VA examinations in December 2011, November 2012, July 2014, and May 2015 show that the Veteran was diagnosed with sinus headaches and migraine headaches including migraine variants. In the May 2012 rating decision that granted service connection for migraine headaches, the AOJ determined that the sinus pressure headaches and migraine headaches are more likely than not related to the injury he sustained while on active duty. Thus, the Board will consider the symptoms of non-migraine headaches, as well as, migraine headaches in determining whether the reduction was proper. Turning to the evidence of record, prior to the reduction, a VA examination was performed in May 2015. Based on the findings at this examination, the AOJ determined that some improvement had occurred in the Veteran’s migraine headaches. The reduction of the Veteran’s disability rating was based on this one examination. The May 2015 VA examination shows that the Veteran reported that he had headaches essentially every morning when he wakes up. He would experience “heat waves” in his eyes that would last about 20 minutes prior to the onset of the headache. With most headaches he would also experience numbness on the side of his face and in one arm or hand. His headaches resulted in him having to close his eyes and noise would bother him. The Veteran’s headaches would last about two hours. If he exerted during a headache, then the headache would become worse. The Veteran also reported that every two months or so he would experience a cluster of migraines, with his typical headache, which would resolve and then return. These headaches would last one to two days. The Veteran also noted that one of the reasons he retired from his job was because it was difficult for him to use a computer when he was having headaches. The examiner determined that the Veteran experienced the following headache pain: pulsating or throbbing head pain, pain localized to one side of head, and pain worsened with physical activity. The examiner also documented that the Veteran experienced the following symptoms associated with headaches: nausea, sensitivity to light, sensitivity to sounds, changes in vision, and sensory changes. The duration of typical head pain was less than one day. The examiner determined that the Veteran would experience characteristic prostrating attacks of migraine or nonmigraine headache pain once every two months and these Veteran did not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The VA examination report dated in November 2012, which led to the grant of a 50 percent disability rating for migraine headaches, shows that the Veteran reported that after his traumatic brain injury and fracture of the right zygomatic arch, floor of the orbit, and maxilla, he experienced daily headaches in the area of the fracture including the right maxillary sinus. Within a year, he developed migraine headaches. His migraine headaches followed visual scotoma, auras, and numbness and tingling on his left side of the face and upper extremities. His migraines were severe and would last two days with a frequency of two to three per month. The migraines would prevent him from working as he couldn’t see the instruments and once he stopped work, the headaches would place him in bed for the duration. His sinus or maxillary headaches were daily and constant. They build up in the evening and night and become worse in the morning. The November 2012 examiner determined that the Veteran experienced the following headache pain: pulsating or throbbing head pain, pain localized to one side of head, and pain worsened with physical activity. The examiner also documented that the Veteran experienced the following symptoms associated with headaches: nausea, sensitivity to light, sensitivity to sounds, changes in vision, and sensory changes. The duration of typical head pain was one to two days and daily right side headaches. The examiner determined that the Veteran would experience characteristic prostrating attacks of migraine headache pain that would occur more frequently than once per month and would result in very prostrating and prolonged attacks of migraine pain. A July 2014 VA examination report reveals that Veteran reported migraine headaches that occurred on average once per week, although the frequency could vary greatly. He reported that these headaches would last approximately one to two days. The migraine headaches would result in him having to sit and relax for some of the tine, but as it improved he was able to do most of his normal activity while it resolved. The July 2014 examiner determined that the Veteran experienced the following headache pain: pulsating or throbbing head pain and pain localized to one side of head. The examiner also documented that the Veteran experienced the following symptoms associated with headaches: nausea, sensitivity to light, sensitivity to sounds, and changes in vision. The duration of typical head pain was one to two days. The examiner determined that the Veteran did not experience characteristic prostrating attacks of migraine headache pain. The examiner noted that the Veteran would be unable to work during the initial part of his migraine headache. The Board finds that the evidence provided in the May 2015 VA examination does not demonstrate by a preponderance of the evidence improvement in the Veteran’s service-connected headaches. In this regard, the Veteran’s reported symptoms of daily headaches are essentially the same as in the November 2012 VA examination. The main difference between the November 2012 and the May 2015 VA examination is the frequency in which the Veteran reported experiencing a cluster of migraine headaches. However, the Veteran noted in the July 2014 VA examination that the frequency of his migraine headaches fluctuated. Furthermore, the May 2015 VA examination revealed that the Veteran’s daily headaches lasted approximately two hours and were associated with nausea, sensitivity to light, sensitivity to sounds, changes in vision, and sensory changes. These daily headaches resulted in him having to close his eyes and any exertion would cause these headaches to become worse, suggesting that these headaches were completely “prostrating.” The examiner also noted that the Veteran’s headaches impacted his ability to work. Thus, even though the Veteran reported that his cluster migraine headaches occurred less often, the May 2015 VA examination still provided evidence that his service-connected headaches resulted in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability to warrant a 50 percent disability rating. In addition, the Court has held that the Board must determine whether any improvement shown by the VA examination results also reflected an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421; see also Murphy v. Shinseki, 26 Vet. App. 510, 516 (2014). In this case, although the Veteran noted that at the time of the May 2015 VA examination that he experienced cluster migraine headaches once every two months indicating some improvement in the frequency of his cluster migraine headaches, the evidence does not reflect improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Specifically, the November 2012 VA examiner noted that the Veteran was unable to work during migraine headaches. Similarly, the VA examiner in May 2015 noted that during the onset of his headache pain the Veteran had to stop using a computer, he was unable to perform sustained exertional tasks, and he could not be in areas with bright lights. Accordingly, the Board is unable to conclude that the preponderance of the evidence shows that the symptoms of the Veteran’s headaches have improved. Based on the foregoing, the Board finds that the requirements for reduction of the disability rating for migraine headaches have not been met, and as a result, a preponderance of the evidence is not in favor of the reduction. Accordingly, the reduction from 50 percent to 10 percent for the Veteran’s service-connected migraine headaches was not proper. The 50 percent disability rating for migraine headaches is to be restored, effective March 10, 2015. Anosmia The AOJ implemented the rating reduction of the Veteran’s anosmia from 10 percent to 0 percent, effective June 29, 2015 in an August 2015 rating decision. The AOJ did not issue a proposed rating decision or provide the Veteran with notice of this reduction. The Veteran’s overall compensation was not reduced as a result of the rating reduction for anosmia. Prior to the August 2015 rating decision implementing the reduction from 10 percent to 0 percent for anosmia, the Veteran’s combined disability rating was 80 percent, effective from July 31, 2014. Following the August 2015 rating decision, the Veteran’s combined disability rating was 80 percent. As there was no reduction in overall compensation, the provisions of 38 C.F.R. § 3.105 do not apply. See 38 C.F.R. § 3.105 (e); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty day notice before making a disability rating decision effective if the decision did not reduce the overall compensation paid to the Veteran); see also VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply). Accordingly, the Board finds no error in the AOJ’s notification procedures with respect to the reduction. Prior to the reduction, a VA examination was performed in July 2015. Based on the findings at this examination, the AOJ determined that some improvement had occurred in the Veteran’s anosmia. The reduction of the Veteran’s disability rating was based on this examination and an August 2014 VA treatment record. The July 2015 VA examination reveals that the Veteran reported that he had no sense of smell. He noted that his inability to smell affected his job in which he was unable to be warned if he was around toxic or noxious fumes found in wheel metal testing areas as well as formaldehyde insulation of manufactured homes. The smell test showed that the Veteran was unable to smell coffee, soap, and lemon oil in both nostrils. However, he could smell some rubbing alcohol in both nostrils. The VA examiner determined that the Veteran had partial loss of sense of smell. An April 2014 VA treatment record documents that the Veteran was wearing a surgical mask to “ward off smells” after undergoing thoracic surgery. The VA examination report dated in November 2012, which led to the grant of a 10 percent disability rating for anosmia, shows that the Veteran reported that he had not been able to smell properly since his head trauma in 1966. The examiner noted that the Veteran’s current symptoms of TBI included reduced smell. The smell results for coffee, vinegar, and sandalwood were all negative. The examiner diagnosed the Veteran with anosmia and noted that the problem associated with the diagnosis was loss of sense of smell. The examiner noted that the Veteran completely lost his sense of smell. With respect to the effects on occupational activities, the examiner explained that the Veteran’s anosmia had a significant effect on his usual occupation in that it resulted in loss of protective sensation. The Board finds that the evidence provided in the July 2015 VA examination does not demonstrate by a preponderance of the evidence improvement in the Veteran’s service-connected anosmia. Specifically, the Board observes that the Veteran demonstrated in both the November 2012 VA examination and the July 2015 VA examination that he was unable to smell coffee. He was also unable to smell vinegar and sandalwood in the November 2012 VA examination and the he was unable to smell soap and lemon oil in the July 2015 VA examination. However, the July 2015 VA examination noted that the Veteran could smell some of the rubbing alcohol pad presented separately to each nostril. Although a July 2014 VA treatment record noted that he was sensitive to a smell in his hospital room after surgery, the Board concludes that this does not necessarily indicate that the Veteran’s sense of smell improved since November 2012 as the substances used to test the Veteran’s sense of smell were not the same. Furthermore, the evidence does not reflect improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Murphy, 26 Vet. App. at 517 (citing Kitchens, 7 Vet. App. at 325 (“Where... the Court finds that the [Board] has reduced a veteran’s rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as ‘not in accordance with law’.”) quoting 38 U.S.C. § 7261(a)(3)(A)); Brown, 5 Vet. App. at 422; Dofflemyer, 2 Vet. App. at 282. Specifically, the VA examiners in November 2012 and July 2015 determined that the Veteran’s loss of smell impacts his ability to work in that he has no sense of smell to warn him if he is around toxic or noxious fumes or formaldehyde insulation (i.e., loss of protective sensation). Thus, the Board is unable to conclude that the preponderance of the evidence shows that the symptoms of the Veteran’s anosmia have improved. Based on the foregoing, the Board finds that the requirements for reduction of the disability rating for anosmia are not met, and as a result, a preponderance of the evidence is not in favor of the reduction. Accordingly, the reduction from 10 percent to 0 percent for the Veteran’s service-connected anosmia was not proper. The 10 percent disability rating for anosmia is to be restored, effective June 29, 2015. TBI The Veteran contends that the AOJ erred in reducing his TBI rating from 40 to 0 percent, effective January 1, 2016. In this case, the reduction of the Veteran’s TBI rating for 40 percent to 0 percent resulted in the reduction of the combined disability rating from 80 percent to 70 percent and reducing the amount of overall compensation payable to the Veteran. Accordingly, the procedural requirements of 38 C.F.R. § 3.105 (e) apply. The Board finds that all notification requirements under 38 C.F.R. § 3.105(e) were met. Specifically, the Veteran was notified in August 2015 of the AOJ’s proposal to reduce his disability rating for TBI based on a determination that there was CUE in the April 2012 rating decision and he was informed of his rights in challenging this proposed reduction. In September 2015, the Veteran indicated that he disagreed with the proposal. Thereafter, the AOJ reduced the Veteran’s disability rating for TBI from 40 percent to 0 percent, effective January 1, 2016, in an October 2015 rating decision. In this case, the AOJ did not find improvement in the Veteran’s TBI. Instead, the AOJ determined that there was CUE in the April 2012 rating decision awarding a disability rating of 40 percent, as that decision was based on an incorrect application of the rating criteria for TBI. Previous determinations which are final and binding, including decisions of degree of disability, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For CUE to exist, (1) either the correct facts as they were known at that time were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Errors constituting CUE are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Pertinent to this case, disability ratings are generally based on the average impairment of earning capacity, and are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. TBI is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Under this diagnostic code, there are three main areas of dysfunction listed 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. 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. Cognitive impairment is rated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. The rater is instructed to 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, the rater is to 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. Id. Further, the rater is to evaluate emotional/behavioral dysfunction under section 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, emotional/behavioral symptoms should be evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Physical (including neurological) dysfunction is to be evaluated 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. Id. 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 4th level, the highest level of impairment, and 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. A 100-percent evaluation will be assigned 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. Id. 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. Id. 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. Id. 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. Id. 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 DC 8045. Id. Turning to the evidence, a December 2011 VA examination for residuals of TBI document that the Veteran experienced TBI in November 1966 during service. The December 2011 VA examiner documented that the Veteran reported mild memory loss, social interaction was occasionally inappropriate, motor activity was mildly decreased or with mild slowing due to apraxia, visual spatial orientation was mildly impaired, and the Veteran had three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. The examiner noted that the Veteran complained of difficulty remembering what he reads and he could only focus on one word at a time. The examiner determined that these symptoms were not related to TBI. The examiner noted that the Veteran reported that social interaction caused him to become fatigue. The examiner concluded that this did not appear to be related to his TBI. The examiner also determined that mildly decreased motor activity and mildly impaired visual spatial orientation were not related to the Veteran’s TBI. With respect to subjective symptoms of TBI, the Veteran reported that he experienced insomnia, headaches, and hypersensitivity to light. The examiner determined that insomnia and hypersensitivity to light were not related to TBI. The examiner noted that the Veteran’s judgement was normal, he was always oriented to person, time, and situation, and he was able to communicate by spoken and written language and able to comprehend spoken and written language. The examiner documented that the mini mental status examination was 30 out of 30 and he had a normal neurological examination. The examiner attributed hearing loss, tinnitus, and headaches to the Veteran’s TBI. A June 2015 VA examination for residuals of TBI document that the Veteran reported that during service he fell out of a moving vehicle and was unconscious for three days. He remained in the hospital for two weeks and he underwent surgery for right mid-face fracture. The July 2015 VA examiner documented that the Veteran complained of mild memory loss, but without objective evidence on testing. Judgement, motor activity, visual spatial orientation, and consciousness were normal. Social interaction was considered to be routinely appropriate and he was considered to be always oriented to person, time, place, and situation. There was no evidence of subjective symptoms or neurobehavioral effects. The Veteran was able to communicate by spoken and written language and able to comprehend spoken and written language. A July 2015 VA examination for residuals of TBI documented the same results as in the June 2015 VA examination. In the April 2012 rating decision, service connection was granted for TBI, tinnitus, left ear hearing loss, and migraine headaches. The AOJ assigned a 40 percent rating for TBI based on a level of severity of “2” for motor activity facet under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” Table (hereinafter Table). Thereafter, in the October 2015 rating decision, the AOJ determined that there was clear and unmistakable error in the April 2012 rating decision with respect to granting a 40 percent disability rating for TBI. The AOJ noted that the December 2011 VA examination determined that the only residual of TBI was migraine headaches. While the Veteran reported some levels of impairment in some of the facets, such as memory, social interaction, motor activity, and visual spatial orientation, the examiner determined that these symptoms were not related to his TBI. The February 2012 neuropsychology testing did not show any evidence of cognitive dysfunction. The AOJ noted that the Veteran’s TBI resulted in a severity of “0” for each facet. Based on a review of the evidence of record at the time of the reduction, the Board finds that the April 2012 rating decision contained an error that was clear and unmistakable. Upon review of the Table, a level of “2” would be properly justified for the motor activity (with intact motor and sensory system) facet if the evidence at the time demonstrated motor activity mildly decreased or with moderate slowing due to apraxia due to his TBI. At the December 2011 VA examination, the examiner clearly indicated that based on the Veteran’s reported symptoms his motor activity was mildly decreased or with moderate slowing due to apraxia; but this was not related to a TBI. Thus, under the motor activity facet, a severity level of “0” was warranted at the time of the April 2012 rating decision. The assignment of a level of severity of “2” with respect to the motor activity facet in the April 2012 rating decision was a clear and unmistakable error based on the evidence in the claims file at that time. Furthermore, in the April 2012 rating decision, the AOJ incorrectly assigned a severity level of “1” for the following facets: memory, attention, concentration, executive functions; social interaction; visual spatial orientation; and subjective symptoms. Although the December 2011 VA examiner documented that the Veteran reported experiencing mild memory loss, occasionally inappropriate social interaction, mildly impaired spatial orientation, and three or more subjective symptoms (insomnia, headaches, and hypersensitivity to light), the examiner determined that these symptoms were not residuals of the Veteran’s in-service TBI. With respect to the Veteran’s headaches and sensitivity to light, these symptoms are rated under a separate disability rating for headaches. The Veteran underwent a neuropsychological evaluation in February 2012 that revealed the Veteran did not show cognitive deficits on formal testing consistent with lasting sequela of a head injury. With one exception, his test scores were within expected ranges based on his estimated intelligence quotient. The physician noted that the difficulties on the WCST test were not likely secondary to an organic process given the other tests on reasoning and planning were within broad normal limits and the Veteran denied difficulties consistent with planning, reasoning, or organizational difficulties. The physician noted that the Veteran had some anxiety symptoms that are likely to impact day to day functioning, including memory and attention. Thus, the memory, attention, concentration, executive functions facet; social interaction facet; visual spatial orientation facet; and subjective symptoms facet should have all been assigned a severity level of “0.” The December 2011 VA examination revealed that the Veteran’s judgement was normal, he was always oriented to person, time, place, and situation, he was able to communicate and comprehend spoken and written language, and his consciousness was normal. With respect to neurobehavioral effects, in a March 2012 addendum, the examiner determined that there were no neurobehavioral effects due to the in-service TBI. Thus, the remaining facets were correctly assigned a severity level of “0.” Given the above, the Board concludes that the decision in the April 2012 rating decision to award a 40 percent rating for TBI was clearly and unmistakably erroneous. Because there was a clear and unmistakable error made in April 2012, the reduction in evaluation from 40 percent to 0 percent, effective January 1, 2016, was proper and the appeal for restoration of the 40 percent rating must be denied. TDIU Claim The Veteran submitted a TDIU claim in March 2015. The Veteran asserts that he is unable to obtain and maintain substantially gainful employment due to his service-connected ischemic heart disease and headaches. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340 (a), a veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. From March 10, 2015 to April 27, 2018, the Veteran was service connected for the following disabilities: ischemic heart disease, evaluated as 60 percent disabling; headaches, evaluated as 50 percent disabling; anosmia, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; left ear hearing loss, evaluated as noncompensable; residuals of fracture right floor of orbit and zygomatic arch, evaluated as noncompensable; residuals of fracture right maxilla, evaluated as noncompensable; and dysgeusia, evaluated as noncompensable. The combined evaluation for compensation was 80 percent. As of April 27, 2018, the Veteran’s combined evaluation for compensation was 100 percent. Accordingly, the Veteran met the schedular percentage requirements for entitlement to TDIU throughout the relevant appeal period from March 10, 2015 to April 27, 2018. See 38 C.F.R. § 4.16(a). The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. Consideration may be given to the veteran’s education, special training, and previous work experience, but not to the veteran’s age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the collective evidence suggests that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation throughout the relevant appeal period. In March 2015, the Veteran asserted that his service-connected disabilities for heart disease and headaches affected his ability to work full-time and resulted in him becoming too disabled to work in September 2009. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. He stated that he worked for Maxion Wheels as a laboratory technician from November 1978 to September 2009. He graduated from high school, but he has no other type of education or training. In August 2014, his former employer, Maxion Wheels, verified that the Veteran was employed with the company from November 1978 through August 2009 as a lab technician and the reason for termination of employment was that he retired. The Veteran underwent a VA examination for his heart disability in May 2015. He reported exertional shortness of breath and if he tried to walk up hills, climb stairs for more than one flight, or walk 30 yards carrying a 50-pound bag, he felt weak. He had to stop and rest about every five minutes more frequently when trying to be active. The Veteran explained that he could not walk very far or lift/carry if it was cold. He occasionally experienced chest pain. When he did not take Lasix daily, he experienced difficulty breathing and swelling in his feet and ankles. The Veteran noted that he was independent in his activities of daily living. Medication that the Veteran took to control his heart condition included Amlodipine, Lisinopril, Carvedilol, Aspirin, Furosemide/Lasix, and Gemfibrozil. He also took Nitroglycerin, as needed. The Veteran had experienced one episode of acute congestive heart failure in the past year. He had coronary artery bypass surgery in April 2014. A September 2014 EKG was abnormal. The examiner did not perform an exercise stress test as it was not without significant risk. Interview based METs test was 3-5 METs, consistent with activities such as light yard work, mowing lawn, or brisk walking. This was the lowest activity level at which the Veteran reports dyspnea and fatigue attributable to his cardiac condition. The examiner determined that the Veteran’s heart disability impacted his ability to work in that his maximum lift or carry was 20 pounds or less, occasionally, maximum standing or walking was 2-3 hours per 8 hours only on level terrains and with options to stop and rest per symptoms. He must avoid sustained exertion in temperature and humidity extremes. Infrequent stair climbing, limited to one flight per hour self-paced and with railings and option top stop and rest per symptoms. The examiner also determined that the Veteran must avoid running and ladder climbing. A May 2015 VA examination for headaches revealed that the Veteran reported he experienced headaches essentially every morning when he woke up. He would experience “heat waves” in his eyes that would last about 20 minutes prior to the onset of his headache. He had to close his eyes and noise bothered him. These headaches usually lasted about two hours. If he exerted himself during a headache, the headache would intensify. Once every two months, he would experience a cluster of migraines. These headaches would last one to two days. The Veteran reported that one of the reasons he retired from his job of 31 years was because it was difficult for him to use a computer when he was having headaches and he was required to use a computer as part of his job. The examiner determined that the Veteran’s headaches impacted his ability to work in that he would have to stop using the computer during a headache and during the onset of the headache he was unable to perform sustained exertional tasks or be in areas of bright lights. Furthermore, a July 2015 VA examiner noted that the Veteran’s service-connected anosmia resulted in the Veteran having no sense of smell, which would be able to warn him if he was around toxic or noxious fumes found in the wheel metal testing areas as well as the formaldehyde insulation of a manufactured home. Based on the medical and lay evidence of record, the most pertinent of which was discussed above, the Veteran’s service-connected ischemic heart disease, headaches, anosmia, and mild memory loss associated with TBI would result in the Veteran being unable to obtain and maintain employment in an occupation that required physical labor. With respect to the Veteran’s ability to obtain and maintain non-physical employment (such as in an office setting), the Veteran’s work experience as a laboratory technician that required computer data entry indicates that he has the skills to conduct some types of non-physical employment. However, the lay and medical evidence shows that the Veteran’s service-connected headaches and mild memory loss associated as a residual of TBI would impede the Veteran’s ability to maintain a non-physical occupation. In this regard, the July 2015 VA examiner noted that the Veteran’s memory loss as a residual of TBI result in intermittent difficulty remembering instructions for his job assignments and completions of the job at hand. He also experienced daily completely prostrating headaches that would last approximately two hours where he would be unable to use a computer and would have to be away from bright lights. Thus, the Board concludes that the Veteran’s service-connected disabilities prevent him from securing or following any substantially gainful occupation due to combined effect of his service-connected disabilities. In conclusion, the evidence of record indicates that the Veteran would have difficulty maintaining most occupations related to his education, training, and work experiences due to his service-connected disabilities and the evidence is at least in equipoise on the issue of whether the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. Resolving any reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU for the relevant appeal period is warranted. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel