Citation Nr: 1808356 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-33 678A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an eye disability, to include refractive error. 2. Entitlement to service connection for varicose veins. 3. Entitlement to service connection for a sinus disability. 4. Entitlement to an initial evaluation in excess of 10 percent for service-connected traumatic brain injury with headaches. 5. Entitlement to an initial compensable evaluation for service-connected removal of a bullet from the head. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from April 1966 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Montgomery, Alabama, Department of Appellants Affairs (VA) Regional Office (RO). In his appeal (VA Form 9), received in December 2012, the Veteran indicated that he desired a hearing at the RO before a Veterans Law Judge. A hearing was scheduled for September 2017, however, the Veteran failed to report for his hearing. The Veteran's request for a Board hearing is therefore considered to have been withdrawn, and the Board will proceed. 38 C.F.R. § 20.702 (d) (2017). FINDINGS OF FACT 1. The Veteran does not have an eye disability, to include refractive error, a sinus disability, or varicose veins, that was caused by his service, or that was caused or aggravated by a service-connected disability. 2. The Veteran's traumatic brain injury with headaches is not shown to have been productive of symptoms warranting more than a level "1" in any category under Diagnostic Code 8045; he is not shown to have headaches with characteristic prostrating attacks occurring on the average of once a month over the last several months. 3. The Veteran's service-connected removal of a bullet from the head is not shown to have been productive of one characteristic of disfigurement, or a limitation of function. CONCLUSIONS OF LAW 1. The criteria for service connection for an an eye disability, to include refractive error, a sinus disability, and varicose veins, have not been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310, 4.9 (2017). 2. The criteria for an initial evaluation in excess of 10 percent for service-connected traumatic brain injury with headaches have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Codes 8045, 8100 (2017). 3. The criteria for an initial compensable evaluation for service-connected removal of bullet from head have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Codes 7800, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran asserts that he is entitled to service connection for an eye disability, to include refractive error, a sinus disability, and varicose veins. He argues that he has eye symptoms that include bloodshot eyes, and burning in his eyes, that have been present since his gunshot wound to the head was sustained in Vietnam in 1966. As an initial matter, the Board notes that in the April 2010 RO decision that is currently on appeal, the RO denied claims for service connection for "bloodshot, burning eyes (also claimed as sensitive to light, wind and relative humidity)," "refractive error (claimed as loss of focus, right eye)", and "sinus attacks." The Board has recharacterized and combined those issues as stated on the cover page of this decision, so as to interpret the claimed conditions as broadly as possible. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Board notes that in final and unappealed decisions, dated in November 2011, and November 2013, the RO denied claims for service connection for chronic obstructive pulmonary disease, and chronic acneiform eruptions, respectively. See 38 U.S.C. § 7105 (c) (2012). When determining service connection, all theories of entitlement, direct and secondary, must be considered by the Board if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Under the circumstances, the Board has construed the scope of the claims to include the possibility of secondary service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Congenital or developmental defects, e.g., refractive error of the eyes, as such, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c) (2017); see also 38 C.F.R. § 4.9 (2017); Beno v. Principi, 3 Vet. App. 439 (1992). The VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR, Part IV.ii.2.B.6.c. "Presbyopia is described as 'hyperopia and impairment of vision due to advancing years or to old age; it is dependent on diminution of the power of accommodation from loss of elasticity of the crystalline lens, causing the near point of distinct vision to be removed farther from the eye'." Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (citing to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1453 (29th ed. 2000)). The Veteran is shown to have served in Vietnam. His awards include the Vietnam Service Medal with Silver Service Star and two Bronze Service Stars, the Republic of Vietnam Campaign Medal, the Vietnames Cross of Gallantry with palm, the Combat Infantryman Badge, and the Purple Heart. Under 38 U.S.C. § 1154 (b), in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The provisions of 38 U.S.C. § 1154 (b) do not establish a presumption of service connection, but ease the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Thus, the provisions of section 1154(b) apply only to the material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b). Service connection is currently in effect for posttraumatic stress disorder, traumatic brain injury with headaches, removal of bullet from head, and tinnitus. With regard to the history of the Veteran's service-connected traumatic brain injury with headaches, as well as the service connection claims on appeal, the Veteran has reported the following: in June 1966, he was shot in the right zygomatic arch. He was "knocked silly," but he did not lose consciousness, or have a loss of memory. He was evacuated by helicopter, and he received outpatient treatment for shrapnel. He was given five days of light duty, cleared for full duty on July 1, 1966, and he finished his tour in Vietnam. About a year after he finished his tour, while in the Continental United States, an X-ray showed a bullet in his zygomatic arch, which was surgically removed. The bullet had remained under the tissue, but it never penetrated the skull. See e.g., VA examination reports, dated in February 2010 and March 2011. His reported history is consistent with the circumstances, conditions, and hardships of his service, and is credible. See 38 U.S.C. § 1154 (b) (2014). Service treatment records include a report, the date stamp of which is somewhat illegible, but which appears to be July 1966, which notes that the Veteran was hit by a bullet or shrapnel in June 1966, and that he has had recurrent swelling and pain over his right zygomatic arch since that time. On examination, there was a tender nodule at the right zygomatic arch. A September 1967 report notes that there was a bullet or shrapnel in the area of the zygomatic arch. In October 1967, an X-ray showed a .30-caliber bullet posterolateral to the right maxillary sinus (also described as the intra-temporal fossa). The Veteran was hospitalized for about 17 days, during which time a foreign body was removed from the right zygomatic arch that same month. The Veteran was discharged to full duty. In April 1973, the Veteran was treated for a foreign body in the left eye. His vision was noted to be normal. The Veteran's separation examination report, dated in September 1988, shows that his eyes, pupils, skin, and ocular motility, were all clinically evaluated as normal, and that his ophthalmoscopic examination was normal. His distant vision was 20/20, bilaterally. See also service examination reports, dated in August 1968, March 1971, June 1981, and July 1987 (same). The September 1988 associated report of medical history shows that the Veteran indicated a history of a head injury, and that he denied a history of eye trouble, skin diseases, or sinusitis; he denied wearing glasses. See also July 1987 report of medical history (same). The July 1987 report of medical history also notes a history of a gunshot wound to the head in 1966, with no sequelae. As for the post-service medical evidence, an eye consultation report, dated in February 2010, shows that the Veteran sought treatment for a report of problems with his right eye vision. He reported having bloodshot eyes, photophobia, and some burning and losing focus in his eye, as well as a possible lost visual field, following his inservice injury. He denied reciving any ophthalmological treatment. He also indicated that he was sensitive to lights, dust, and sun. On examination, corrected vision was 20/20, bilaterally. There was no diplopia. Extraocular muscle movements were full. Visual fields were full to confrontation. The diagnosis notes that the Veteran's ocular health was WNL (within normal limits). The report notes "refractive error not aggravated or caused by military service." In an addendum, dated in February 2010, the examiner stated that the Veteran's claims file had been reviewed, and that the diagnosis stands as written. A VA traumatic brain injury examination report, dated in February 2010, shows that on examination, the Veteran's eyes and pupils were equal, round, and reactive to light and accommodation. Extraocular movements were intact. The nares were patent without significant obstruction. The skin was warm and dry with good skin color and normal turgor, without cyanosis, ecchmyosis, jaundice, or breakdown. There were no rashes, acne, or chloracne. The diagnosis was mild traumatic brain injury, resolved without residuals. The examiner concluded that multiple functional somatic symptoms, including light sensitivity, are less likely than not caused by, or related to, the traumatic brain injury. A March 2011 VA examination report shows that the Veteran reported hypersensitivity to light that had started after his inservice injury, and worsened over time. He stated that he had not received any treatment for his eye symptoms, but that he wore sunglasses. The report contains essentially identical findings for the eyes, and skin, as found in the February 2010 VA examination report. The report further notes that on examination, there were no varicosities or venous flushing. The relevant diagnosis was mild traumatic brain injury, resolved without residuals. A July 2011 VA Agent Orange Protocol examination report shows that the Veteran reported a history of boils on his skin since his service, and that three boils had been lacerated and drained during service in 1966. He also reported having bumps "like acne" on his neck, and underneath his ears and eyes, mostly on his face and the back of his neck. He reported a history of a left cheek cyst removal in 1983, two cysts removed from his right cheek in 2001, and a spider cyst removed from the left eyebrow in 2001. On examination, the Veteran's eyes and pupils were equal, round, and reactive to light and accommodation. Extraocular movements were intact. Skin was warm with normal turgor. There were four to five papules at the back of the neck, and one at the right ear. There was no relevant diagnosis. With regard to VA progress notes, a June 2011 report notes a normal eye examination. Reports, dated in May 2010 and June 2011, note that an eye consultation "found no problems." A report, dated in July 2011 report indicates that on examination there were no varicosities. There are multiple notations which show that the Veteran uses artificial tears for dry eyes. The Board finds that the claims must be denied. Under 38 U.S.C. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability in order to merit an award of compensation. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also Degmetich v. Brown, 104 F. 3d 1328 (1997). In this case, there is no evidence to show that the Veteran had any of the claimed conditions during service. Therefore a chronic disorder is not shown during service. See 38 C.F.R. § 3.303 (a), (b). The evidence is also insufficient to show that the Veteran currently has any of the claimed disabilities. To the extent that the Veteran may have refractive error, this is not a disease or injury within the meaning of applicable legislation and, thus, it is not a disability for which service connection may be granted. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Beno. Although the Veteran is shown to have participated in combat, the United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C. § 1154 does not alter the fundamental requirements of a diagnosis, and a medical nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Here, while the Veteran has been in combat, the previously discussed evidence does not warrant a grant of any of the claims. The problem with the claims is not what happened to him during service, but the fact that the Board cannot connect any of his claimed conditions to a currently diagnosed disorder that is related to his service, or to a service-connected disability. Accordingly, the Board finds that the weight of the evidence is comfortably against the claims on any basis, and that the claims must be denied. See 38 C.F.R. §§ 3.303, 3.310. The issues on appeal are based on the Veteran's contentions that an eye disability, to include refractive error, a sinus disability, and varicose veins, have been caused by service, or caused or aggravated by a service-connected disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's service and post-service medical records have been discussed. The Veteran has been found not to have any of the claimed disabilities. Given the foregoing, the Board finds that the service and post-service medical evidence outweighs the Veteran's contentions to the effect that service connection is warranted for any of the claimed disabilities. Accordingly, the Board finds that the weight of the evidence is against the claims, and the claims are denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C. § 5107 (b). Initial Increased Evaluations In April 2010, the RO granted service connection for traumatic brain injury with headaches, evaluated as 10 percent disabling, and "removal of bullet from head," evaluated as noncompensable. In each case, the effective date for service connection was November 17, 2009. The Veteran has appealed the issues of entitlement to initial increased evaluations. With regard to the history of the disabilities in issue, this was discussed supra. The Board notes that with regard to the service-connected disability "removal of bullet from head," the RO has evaluated this as a scar at the occipital region of the head. The Board further notes that service connection is currently in effect for posttraumatic stress disorder (PTSD), and tinnitus. The evaluations for the Veteran's PTSD and tinnitus are not on appeal, and are not currently in issue. The Veteran is appealing the original assignments of disability evaluations following awards of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2017). Traumatic Brain Injury with Headaches The Veteran's traumatic brain injury with headaches has been evaluated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045. Under DC 8045, there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment should be evaluated 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 TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, 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. Assign a 100- percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 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. 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, DC 8045. 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 co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. As an initial matter, the Board notes that separate ratings are in effect for PTSD, and tinnitus. As such his tinnitus and psychiatric symptoms have been separately evaluated under diagnostic codes other than DC 8045, and these symptoms may not be considered in the evaluation of his residuals of TBI, as this would constitute pyramiding. See 38 C.F.R. §§ 4.14, 4.124a, DC 8045 Note(1); Esteban v. Brown, 6 Vet. App. 259 (1994). The medical evidence includes a February 2010 VA TBI examination report which shows the following: the Veteran meets the criteria for mild traumatic brain injury. He primarily complained of headaches (discussed in greater detail, infra). He also reported some dizziness. He denied weakness, vertigo, paralysis, sleep disturbance, fatigue, malaise, or impairment of mobility. No device was needed for ambulation. There were no sensory changes or seizures. There was no autonomic dysfunction, endocrine dysfunction, or cranial nerve dysfunction. He had no difficulty in performing functional instrumental activities of daily living. He had no complaints of memory, attention, concentration, or executive function impairment. On examination, there was a slight indentation of nerves of the right temporal area. Gait was normal. No motor apraxia was appreciated. There were no tremors, fasciculations, spasticity, or rigidity. Finger-to-nose was intact. Deep tendon reflexes were +2/4 and equal bilaterally. There was no atrophy, contracture, hypertrophy, or loss of tone. Strength, to include grip strength, was 5/5 bilaterally. The Veteran could toe-walk, heel-walk, and heel-to-toe walk. There was normal and equal sensation to pinprick, light touch, and vibratory sense in the upper and lower extremities, bilaterally. There was no painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness, or instability, or loss of function, other than as noted. With regard to the 10 facets of a TBI related to cognitive impairment and subjective symptoms, the examination report shows the following: memory, attention, concentration, and executive function appeared normal. Judgment was normal. Social interaction was routinely appropriate. Orientation was times four (time, place, person and objects); he was always oriented. Motor activity is normal. Visual spatial orientation is normal. Subjective symptoms do not interfere with daily living, work, family, or other close relationships. There were one or more neurobehavioral effects that did not interfere with workplace or social interaction. He was able to communicate by, and comprehend, spoken and written language. He had expressive communication. Consiousness was normal. The diagnosis was mild traumatic brain injury, resolved without residuals. A VA scar examination report, dated in May 2010, shows the following: the Veteran had no limitations in activities of daily living or employment. He had foot pain after walking more than one mile. On examination, gait was normal, and well-coordinated. He walked without assistive devices. He was alert, oriented to place, person, and time, with appropriate behavior, apparent comprehension, and coherent answers. A VA mental disorders examination report, dated in February 2010, and a VA examination report, dated in March 2011, contain findings that are essentially the same as those in the February 2010 VA examination report, to include findings relating to the 10 facets of a TBI related to cognitive impairment and subjective symptoms; the February 2010 mental disorders examination report notes a complaint of mild memory loss. They show that the Veteran reported that he had retired in 2009, after being employed full-time as a machinist for 20 years, due to physical problems with his feet and legs, as well as his eyes. An Agent Orange Protocol examination report, dated in A July 2011, notes complaints of occasional dizziness, which last for less than five minutes. There were no swallowing or speech difficulties. On examination, there were no seizures, syncope or stroke, and no paresthesias or loss of sensation. Cranial nerves II through XII were grossly intact. The Veteran was oriented times four. There were no motor deficits, or sensory deficits. He had normal deep tendon reflexes bilaterally. A coordination test was normal. A finger-to-nose test was normal. Heel walk, toe walk and heel-to-toe walk were normal. Speech and gait were normal. No assistive devices were used . There was no atrophy or hypertrophy of the muscles. A VA TBI DBQ, dated in March 2017, notes that the Veteran primarily complained of headaches (discussed in greater detail, infra). With regard to the 10 facets of a TBI related to cognitive impairment and subjective symptoms, the examination report shows the following: there were no complaints of memory, attention, concentration, or executive function. Judgment was normal. Social interaction is routinely appropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity is normal. Visual spatial orientation is normal. There were three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. There were no neurobehavioral effects. He was able to communicate by spoken and written language and to comprehend spoken and written language. Consiousness was normal. The examiner indicated that the Veteran did not take continuous medication for his condition, and that his symptoms had progressed. There was no impact on his ability to work. The diagnosis was traumatic brain injury with headaches, gunshot wound to the head. Overall, VA progress notes dated between 2010 and 2016, contain multiple findings noting that the Veteran's speech was normal, that he was oriented times three or four (i.e., to time, place, and person, or to time, place, person and objects), that cognition was grossly intact in terms of immediate, recent, and remote memory functioning, that insight was intact, and/or that judgment and impulse control were adequate. See e.g., reports, dated in January 2011, January 2012, March 2013, September 2014, December 2015, March, June, September and December of 2016. The Veteran reported that he retired in 2009. An April 2011 PTSD DBQ shows that the Veteran was found to be capable of managing his financial affairs. The Board finds that an initial evaluation in excess of 10 percent is not warranted. Upon consideration of the ten facets discussed for evaluation of cognitive impairment and other residuals of TBI not otherwise classified, none warrant assignment of more than "1" level of impairment. The evidence indicates that the Veteran has normal social interaction, orientation, motor activity (with no evidence of apraxia), communication, and consciousness. There is evidence of a complaint of mild memory loss (in the February 2010 VA mental disorders examination report), nut no objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. There is evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships (in the March 2017 VA DBQ), but not three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Finally, there is also evidence of one or more neurobehavioral effects that did not interfere with workplace or social interaction (in the February 2010 and March 2011 VA examination reports), but not one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. In summary, the evidence is insufficient to show that the required symptoms for an initial evaluation in excess of 10 percent are shown to have been present in both degree and frequency. Therefore, an initial evaluation in excess of 10 percent under 38 C.F.R. § 4.124a, DC 8045 is not warranted. The RO has characterized the disability in issue as "traumatic brain injury with headaches." The Board will therefore also determine whether or not the Veteran may be afforded a higher initial evaluation for his headaches. See DC 8045, Note 1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Headaches are evaluated under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a 10 percent disability rating is warranted for: migraine: With characteristic prostrating attacks occurring on an averaging one in 2 months over the last several months. A 30 percent disability rating is warranted for: migraine: With characteristic prostrating attacks occurring on an average of once a month over last several months. Id. The medical evidence includes the following: a Novmeber 2009 VA progress note shows that the Veteran reported having intermittent low-grade aching or burning sensations in his forehead bilaterally. A February 2010 VA TBI examination report shows that the Veteran reported daily headaches, described as a light sensation in his forehead, also noted to be mild. A VA scar examination report, dated in May 2010, shows that the Veteran reported that following removal of the bullet from his head, "he used to have some headaches and pain; otherwise, since 1998 the pain has been resolved." A March 2011 VA examination report shows that the Veteran reported headaches occurring about once a week, that were "mild by severity." They lasted different amounts of times, and resolved on their own. There were no prescribed medications for headaches, nor had he sought treatment for his headaches. A July 2011 Agent Orange Protocol examination report notes complaints of mild frequent headaches, which occasionally become intense. A VA headaches DBQ, dated in March 2017, shows that the Veteran complained of constant head pain. No medications were reported. The DBQ shows the following: the Veteran experiences non-headache symptoms associated with headaches, specifically sensitivity to light, and changes in vision (examples listed in the form are noted as "such as scotoma, flashes of light, tunnel vision)." The duration of typical head pain was several hours. The Veteran stated that his pain felt like "it wraps around his head." There were no chraracteristic prostrating attacks of migraine or non-migraine head pain. There were no very prostrating and prolonged attacks of mirgraine or non-migraine pain productive of severe economic inadaptability. There was no impact on the Veteran's ability to work. A VA TBI DBQ, dated in March 2017, shows that the Veteran reported having constant headache pain and light sensitivity. He treated his symptoms with Citalopram. The Veteran was noted to have constant headaches, with light sensitivity and changes in vision. The Board finds that an initial evaluation in excess of 10 p[ercent is not warranted under DC 8100. Although the Veteran is shown to have frequent headaches, there is no competent evidence to show that they are prostrating in nature. The evidence is therefore insufficient to show that the Veteran has headaches with characteristic prostrating attacks occurring on an averaging one in 2 months over the last several months, as required for an initial evaluation in excess of 10 percent under DC 8100. The Board has therefore determined that the criteria for an initial evaluation in excess of 10 percent have not been met under DC 8100. The Board futher notes that as the Veteran's headaches are not shown to have been productive of "characteristic prostrating attacks," the evidence is insufficient to show that a separate compensable (i.e, 10 percent) evaluation is warranted for headaches under DC 8100. See DC 8045, Note 1. Removal of Bullet from Head The history of this disability was discussed supra. The RO has evaluated the Veteran's removal of bullet from head as noncompensable under DC 7805. The Board notes that unretouched color photographs, received in September 2014, are of record. Under DC 7800, disfigurement of the head, face, or neck, with one characteristic of disfigurement, warrants a 10 percent evaluation. Under Note (1), the 8 characteristics of disfigurement for purposes of evaluation under § 4.118, are: a scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation: scar adherent to underlying tissue; skin hypo-or hyper- pigmented in an area exceeding six square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39-sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39- sq. cm.). Under note (3) the adjudicator is to take into consideration unretouched color photographs when evaluating under these criteria. Under 38 C.F.R. § 4.118, Diagnostic Code 7805, other scars are rated on limitation of function of the affected part. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2017). A VA scar examination report, dated in May 2010, shows the following: the examiner noted a "residual linera scar that has partially resolved." The scar has healed well without secondary infection. There was no history of infection of the scar. Currently, there was no symptomatology regarding the scar. There was no skin breakdown. There was no limitation to activities of daily living or employment. There was no current treatment. On examination, there was a linear two centimeter (cm.) long scar at the right zygomatic arch, that was partially-resolved, well-healed, with a depression of about one millimeter (mm.). The scar was nontender on palpation, without damage to underlying soft tissue. It does not cause limitation of function or motion. There was no disfigurement. There was no abnormal texture or pigmentation. The relevant diagnosis was asymptomatic, well-healed scar on the righ zygomatic arch. A VA headache DBQ, dated in March 2017, notes that the Veteran does not have painful or unstable scars, or scars with a total area greater than 39 square centimeters. See also March 2017 VA TBI DBQ (same). A VA scars and disfigurment DBQ, dated in March 2017, shows that the Veteran was found to have a scar at his right temple with a length of 2 cm. and a width of 0.5 cm. The total area was 0 cm (squared). There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran's scar did not result in any limitation of function. There was no impact on his ability to work. The diagnosis was gunshot wound to the head, with residual scar. The Veteran's scar from the removal of the bullet in his head is not shown to have been productive of one characteristic of disfigurement, or a limitation of function. Accordingly, the criteria for an initial compensable evaluation under DCs 7800 and 7805 are not shown to have been met, and the claim must be denied. Conclusion The Board has considered the Veteran's statements that he should be entitled to increased initial evaluations. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Lay persons are normally competent to report neurological and physical symptoms, as these observations come to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased initial evaluations. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, are more probative than the Veteran's assessment of the severity of his disabilities. The VA examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disabilities. In deciding the Veteran's initial increased evaluation claims, the Board has considered the determinations in Fenderson, and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to initial increased evaluations for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that either of the Veteran's evaluations should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the day the Veteran filed the claims to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of either of the claimed disabilities such that an initial increased evaluation is warranted. The issue of whether referral for extra-schedular consideration is warranted must be argued by the claimant or reasonably raised by the record. Yancy v. McDonald, 27 Vet. App 484 (2016); see also Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, neither the Veteran, nor the record, raises the issue of an extra-schedular rating for either of the disabilities in issue. Although the Veteran has submitted evidence of medical disability, and is presumed to have made claims for the highest evaluations possible, he has not submitted evidence of his unemployability, or claimed to be unemployable due to either of the service-connected disabilities in issue. He has reported that he retired in 2009. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In reaching these decisions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. The Veteran has been afforded examinations. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for an eye disability, to include refractive error, a sinus disability, and varicose veins, is denied. An initial evaluation in excess of 10 percent for service-connected traumatic brain injury with headaches is denied. An initial compensable evaluation for removal of bullet from head is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs