Citation Nr: 1820775 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 12-35 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), to include as secondary to service connected residuals of TBI. 2. Entitlement to an initial rating in excess of 10 percent for residuals of a traumatic brain injury (TBI). 3. Entitlement to an initial rating in excess of 30 percent for migraines prior to November 20, 2017, and to a compensable rating on and after November 30, 2017. 4. Whether the reduction of the disability rating for migraines, effective November 30, 2017, was proper. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2001 to June 2001, from December 2002 to December 2003, from October 2004 to November 2005, and from February 2008, to May 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and November 2012 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal initially came before the Board in October 2015. It was thereafter remanded for further development, and has been returned to the Board for appellate consideration. In a December 2017 rating decision, the RO proposed to reduce the disability rating for migraine headaches from 30 percent to a noncompensable (e.g., zero percent) rating. This proposal was effected by a January 2018 rating decision, and the Veteran's rating was reduced to a noncompensable rating, effective November 30, 2017. It was not clear that the Veteran was provided a form by the RO for the purpose of initiating an appeal. However, by way of February 2018 correspondence and an appellate brief dated later that month, the Veteran's representative disagreed with the rating decisions proposing and later effecting the reduction. The Board construes the representative's February 2018 appellate brief as a valid Notice of Disagreement, and notes that an appeal has been initiated regarding the reduction in the rating assigned for the Veteran's service-connected migraines. 38 C.F.R. § 20.201 (b) (2017). There is no indication that the RO is acting on these correspondences. Further, the RO has not, as yet, addressed this claim in a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the Board has added this claim as a question on appeal and discusses it below. The Board notes that an appeal of entitlement to a total disability rating based on individual unemployability (TDIU) was certified to the Board in conjunction with the claims presently listed on the title page. However, in a January 2018 rating decision, a TDIU was granted, effective August 14, 2017, the date the Veteran was found to become unemployed. As such, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The issues of entitlement to an initial rating in excess of 30 percent for migraines prior to November 20, 2017, and to a compensable rating on and after November 30, 2017, and whether the reduction of the disability rating for migraines from 30 percent to noncompensable, effective November 30, 2017, was proper are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a psychiatric disorder. 2. The Veteran's residuals of head trauma, other than his service-connected migraines, have been manifested by mild memory loss, attention, concentration, or executive function, but no objective evidence on testing, occasional disorientation to either person, time, place, or situation, mildly impaired visual spatial orientation, three or more subjective symptoms with mild impairment, and one or more neurobehavioral effects with no interference. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303 (2017). 2. The criteria have not been met for a disability rating in excess of 10 percent for residuals of head trauma excluding post-traumatic headaches. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 -4.14, 4.21, 4.124a, Diagnostic Code (DC) 8045 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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") In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as all identified and available post-service medical records are associated with the claims file. The Veteran has not identified any additional available, outstanding records pertinent to his claimed disorder. Regarding the service connection claim, the Veteran was afforded VA examinations in 2009, 2010, 2012, and 2016. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate to decide the case. The medical opinions are predicated on a full reading of the available service treatment records contained in the Veteran's claims file, consider all of the pertinent evidence of record, and are supported with a complete rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Regarding the increased rating decided on appeal, the Veteran was afforded multiple VA examinations in connection with his claims in 2009, 2010, 2012, and 2016. The Board finds that the VA examination reports and opinion, when taken together, are adequate to decide the case because they are predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. In addition, the examinations, when taken together, fully address the rating criteria that are relevant to rating the disability in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a) (2017). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). Based on the foregoing, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. The Board also finds that there has been compliance with the prior October 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128 (1997). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the updated Diagnostic and Statistical Manual (Fifth Edition), the DSM-5. See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted this interim rule without change and clarified that the provisions of this rule did not apply to claims that have been certified for appeal to the Board or were pending before the Board on or before August 4, 2014. 80 Fed. Reg. 14,308 (March 19, 2015). In this case the RO initially certified the Veteran's appeal to the Board in 2015. Thus, the DSM-V, not the DSM-IV, is the applicable edition for consideration. Service treatment records from April 2008 show a provisional diagnosis of adjustment disorder with anxiety and depressed mood. VA provided an examination for mental disorders in December 2009. At that time, the Veteran was being medically discharged from the National Guard because of back and shoulder injuries. Otherwise, his family and social relationships were normal and the Veteran was showing no psychiatric symptoms. Further, the examiner noted that the Veteran had no history of psychiatric symptoms before, during, or after military service, and no history of substance abuse. The Veteran reported on clinical interview that if he were not injured he would have preferred to deploy to Afghanistan for his fourth deployment. Next, of record is a December 2009 private neuropsychological report conducted by Dr. CCA. On testing, the Veteran had reportedly produced valid neuropsychological and psychological profiles. The Veteran showed significantly reduced sustained attention in the form of borderline-impaired selective auditory attention. The psychologist also noted a borderline deviation in the Veteran's oral language comprehension. Short-term recall of episodic verbal information was reduced. Further, significant dissociation was noted in the Veteran's performance on tests of motor dexterity. The Veteran's responses on testing suggested that he may be viewed as markedly depressed, noted the psychologist. The examiner further noted that the Veteran showed reduced acquisition of visual information, which was likely secondary to reduction in attention and concentration. The psychologist noted that this data clearly suggested evidence of significant left hemispheric dysfunction, most likely secondary to multiple exposures to blasts during his service in Iraq. A June 2010 mental health note shows the Veteran reporting symptoms of anxiety and stress. He also reported difficulty with sleep and having nightmares approximately one time per month. A PTSD screen conducted at that time was positive. VA provided an examination for PTSD in August 2010. The examiner noted that the Veteran was not presently receiving treatment for a psychiatric disorder. After reviewing the Veteran's medical history and conducting testing, the examiner diagnosed the Veteran with a history of a TBI but no other psychiatric disorder. The examiner noted that the Veteran had mild anxiety and dysphoric symptoms related to knowing he was unlikely to pass his physical requirement testing and may lose employment. However, there was no evidence of any discrete mood or anxiety disorder based on examination at that time and the Veteran's past longitudinal and functional history. The examiner acknowledged the Veteran's combat experiences during his service and noted that these experiences could be sufficient to support a diagnosis of PTSD. Despite that, however, no diagnosis was rendered. At a June 2012 VA psychiatric examination, the Veteran reported impaired sleep and concentration, and depressed symptoms. The examiner also noted that the Veteran was currently functioning with mild and transient symptoms of low moods, which did not appear to warrant a mental health diagnosis at that time, as the symptoms appeared more normative to the Veteran's adjustment to chronic pain. The examiner noted a mildly affected attention and memory, but it was felt that this was related to the TBI. A psychiatric disorder was not diagnosed. The examiner noted that the Veteran did endorse having some depressive symptoms. However, by his self-report, these symptoms were mild and transient and were an expected response to the Veteran's lifestyle change following a back injury in 2009 and to his shift work at his place of employment. The examiner further noted that the Veteran did not have current formal treatment for mental health other than his diagnosis of mild TBI, and most of the complaints for this condition were related to headaches. The examiner noted that as the Veteran's physical health declined, his depressive symptoms may worsen and, without treatment, fully develop into a mental health condition. VA provided another examination in August 2016. An examination conducted prompted the examiner's opinion that the Veteran did not have a current DSM-5 diagnosis. The examiner noted that the Veteran was currently service-connected for residuals of a TBI. However, it was noted that the Veteran had recently completed a neuropsychological assessment at the Lexington VA in July 2016 (discussed fully in the increased rating section below), showing no cognitive disorder diagnosis. The examiner conducted a thorough clinical interview, reviewing the Veteran's past social and occupational history. The examiner noted that the Veteran had been diagnosed with PTSD by a VA medical provider in June 2010. However, the examiner noted that this diagnosis was due solely to a four question screening assessment, which was not considered a legitimate way to make such a diagnosis. The Veteran had also received a diagnosis of anxiety disorder, not otherwise specified, in a June 2010 VA telephone appointment, but the Veteran did not appear for a follow-up appointment. The Veteran was not currently involved in any type of mental health treatment and was not currently being prescribed any type of psychiatric medication. Behaviorally, the Veteran was pleasant, attentive, and cooperative during the VA examination. There were no signs of any psychotic symptoms, and the Veteran's mental status was normal. The examiner also referred to a service treatment record dated in April 2008 showing a provisional diagnosis of adjustment disorder with anxiety and depression. However, noted the examiner, nothing was in the note beyond the diagnosis itself. The examiner concluded that the Veteran did not show symptoms of a psychiatric diagnosis under the DSM-5 on examination at that time. Principal issue in this case is whether the Veteran has had an acquired psychiatric disability at any time during the period on appeal. After a thorough review of the record, the Board finds that the preponderance of the evidence is against a finding that a Veteran has had such a psychiatric disorder. During the appeal period, the only clinical evaluation of record that shows a psychiatric disorder is the private neuropsychological evaluation conducted in December 2009 - during which the Veteran was shown to be markedly depressed. The Board also notes that VA treatment records from 2010 reflect diagnoses of PTSD and anxiety; however, these diagnoses were rendered over the course of telephone interview. In contrast, VA examinations conducted in December 2009, August 2010, June 2012, and August 2016, unanimously conclude that there has been no acquired psychiatric disorder during the period on appeal. The examiners variously acknowledged that the Veteran had some symptoms such as difficulty with memory and attention. However, these symptoms were attributed to the Veteran's service-connected residuals of a TBI, not to a psychiatric disorder. Finally, the Board notes that the August 2016 VA examiner thoroughly addressed the limited evidence in the record reflecting diagnoses of psychiatric disorders. Regarding the April 2008 service treatment records showing a provisional diagnosis of an adjustment disorder, the examiner explained that there was no accompanying explanation for this diagnosis. For the diagnoses of PTSD and anxiety provided in June 2010 and documented in VA treatment records, the examiner noted that these were provided based on telephonic interviews and that the PTSD diagnosis was based solely on a four question interview, which was not sufficient for diagnostic purposes. The examiner addressed the underlying inadequacies behind each previous diagnosis and provided a detailed explanation as to why the Veteran presently does not meet the diagnostic criteria for an acquired psychiatric disorder. The VA examinations are detailed and predicated on a thorough rationale. The Board accords more probative weight to these opinions than the December 2009 private opinion that suggested a psychiatric disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion and the review of relevant medical evidence, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). In making these findings, the Board is cognizant of the Veteran's lay statements that purport to provide a diagnosis. However, the Board finds his statements to be of limited probative value in establishing a diagnosed disability. Although it is error to categorically reject a lay person as competent to provide a diagnosis or nexus opinion, not all such questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a medical opinion depends on the facts of the particular case. "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The diagnosis of a psychiatric disorder under particular psychiatric diagnostic criteria is distinguishable from ringing in the ears, a broken leg, or varicose veins, as these complex psychiatric determinations are not capable of lay observation. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). As such, the Veteran's lay statements pertaining to these issues are not competent to establish the presence of a diagnosis, and thus carry little weight. In contrast, the medical evidence described above is both competent and credible, and hence is highly probative. Given the foregoing, the Board finds that the Veteran has not had a diagnosed acquired psychiatric disorder at any time during the period on appeal, and his claim of service connection cannot be granted. III. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran seeks an initial rating in excess of 10 percent for residuals of a TBI. Under the amended regulation, Diagnostic Code 8045 provides for the evaluation of traumatic brain injuries (TBI). 38 C.F.R. § 4.124a. There are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Diagnostic Code 8045 requires that any residual having a distinct diagnosis that may be evaluated under another diagnostic code must be separately evaluated under that diagnostic code. 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. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA 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 a Traumatic Brain Injury Not Otherwise Classified." Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified." Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. 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. must be considered. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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. 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. "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. The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Id. 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, Diagnostic Code 8045. The Veteran has received a separate evaluation for migraine headaches associated with service-connected residuals of TBI. Insofar as this residual has a distinct diagnosis and has been evaluated under diagnostic code (DC 8100), the Board will not consider migraine symptoms as a subjective symptom for the purposes of evaluating the Veteran's claim under DC 8045. The appeal as to the appropriate rating for migraine headaches will be adjudicated at a later time as it is remanded in the instant decision. VA provided a TBI examination in December 2009. The Veteran's history of sustaining head injuries during service was discussed. On clinical interview, the Veteran mainly described headaches in relation to his brain injury. However, the Veteran also reported having behavioral changes after his second tour, having increased irritability, a short fuse, and feeling trapped inside. He had a diminished skill at handling and tolerating behaviors of others, which was problematic because the Veteran had worked as a corrections officer. Thereafter, he gained employment working as security, working primarily alone. The Veteran reported being more comfortable in this capacity. The Veteran reported having problems with memory, particularly with numbers. He had been seen by speech therapy and received a palm pilot. He would forget why he was in a room after walking into it. He also reported having problems following directions after 20 minutes. Though not receiving mental health treatment, the Veteran also described feeling depressed due to pain issues and his career not progressing the way he wanted it to. The examiner noted no history of dizziness or vertigo, seizures, balance and coordination problems, pain, autonomic dysfunction, numbness, paresthesias or other sensory changes, weakness or paralysis, mobility problems, malaise, bowel problems, bladder problems, erectile dysfunction, hypersensitivity to light and sound, speech or swallowing difficulty, decreased sense of taste or smell, endocrine dysfunction, or cranial nerve dysfunction. Much time was dedicated to describing the Veteran's headaches; however, as noted above this facet of the Veteran's TBI residuals is rated separately and addressed in the remand below. The Veteran had constant and mild memory impairment. Cognitive symptoms included decreased attention, difficulty concentrating, and difficulty with executive functions. In the portion of the examination report labeled cognitive impairment and other residuals, the following symptoms were found: 1) a complaint of mild memory loss, attention, or concentration, or executive functions, but without objective evidence on testing; 2) normal judgment; 3) routinely appropriate social interaction; 4) occasional disorientation to one of the of the four aspects or orientation, listed as person, time, place, or situation; 5) normal motor activity; 6) mildly impaired visual spatial orientation where the Veteran would occasionally become lost in unfamiliar surroundings, have difficulty reading maps or following direction, but retaining the ability to use assistive devices such as GPS; 7) three or more subjective symptoms that would moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationship, listed as marked fatigability, blurred or double visions, and headaches requiring rest periods during most days; 8) one or more neurobehavioral effects that would occasionally interfere with workplace and/or social interaction, but not preclude them; 9) normal communication; and 10) normal consciousness. Skull x-ray images and an MRI of the brain were normal. In the summary, the examiner noted that diagnoses of headaches was related to TBI and that cognitive impairment with memory loss and neurobehavioral problems were related to the Veteran's diagnosed depression, fatigue, and TBI. Fatigue was noted to be related to restless leg syndrome, which was not a symptom of the Veteran's TBI history. The Veteran presented for another TBI examination in August 2010. In contrast with the December 2009 VA examination, there was no impairment found when the examiner addressed cognitive impairment with subjective symptoms. The problems listed in association with the Veteran's history of a TBI included headaches, PTSD by history, and subjective complaints of cognitive problems. The examiner found that the subjective complaints of cognitive problems were not associated with TBI and that there had been no evidence of their presence on neuropsychological testing. In an April 2011 correspondence, the Veteran reported that he had three or more subjective symptoms that moderately interfered with work, instrumental activities of daily living and work, and close relationships. He reported dizziness, anxiety, fatigue, insomnia, headaches/migraines, and sensitivity to light and sound. VA provided another examination in February 2012. The examiner listed the diagnoses of TBI and migraine headaches as residuals of the Veteran's in-service TBI. In the portion of the examination report labeled cognitive impairment and other residuals, the following symptoms were found: 1) a complaint of mild memory loss, attention, or concentration, or executive functions, but without objective evidence on testing; 2) normal judgment; 3) routinely appropriate social interaction; 4) continuous orientation to person, time, place, and situation; 5) normal motor activity; 6) mildly impaired visual spatial orientation where the Veteran would occasionally become lost in unfamiliar surroundings, have difficulty reading maps or following direction, but retaining the ability to use assistive devices such as GPS; 7) subjective symptoms that would not interfere with work, instrumental activities of daily living, or work, family, or other close relationships, manifested by mild or occasional headaches and mild anxiety; 8) one or more neurobehavioral effects that did not interfere with workplace and/or social interactions; 9) normal communication; and 10) normal consciousness. The primary residual complication of the Veteran's TBI was his headaches. Of record is VA neuropsychological evaluation conducted in July 2016. During the clinical interview, the Veteran reported that he had depression, anxiety, and PTSD. When asked directly about his memory, the Veteran acknowledged having problems, particularly with numbers. He reported having trouble operating a GPS, that is cognitive problems were affected by stress, and that he would become nervous in traffic. He reported having problems with memory since about October 2007. On reviewing the Veteran's medical history, the examiner noted that the Veteran was not receiving any treatment for mental health. The examiner noted that the Veteran had arrived late for his appointment, offering no apology or explanation. The Veteran was ambulatory and oriented to person, place, time, and situation. However, he was disheveled and provided poor effort and invalid responses on multiple measures. The Veteran did not fatigue unduly over the course of testing either. Vision was normal, but the Veteran squinted throughout the interview, complaining about sensitivity to florescent lights. He reported that he was only sensitive to this type of light. He reported becoming dizzy when he got up too quickly. He also reported having headaches, upper level hearing loss, and constant tinnitus. The examiner conducted a series of psychological tests which indicated gross exaggeration of psychopathology and cognitive complaints. The examiner explained that the Veteran failed multiple measures of effort/validity for neurocognitive performance and psychological functioning by egregious margins. The evaluation itself was thus completely invalid, providing no evidence of either neurocognitive or psychological impairment secondary to the Veteran's brain injury. The examiner noted that it was not clear from the Veteran's description that he ever sustained a concussion. He reported no loss of consciousness, and while he felt "squirrely" after the blast, he remained aware and in command of his men with no apparent confusion based on his described actions recalled on clinical interview. The Veteran had reported that the most serious TBI injury had occurred nearly three years before the onset of his memory problems. These memory problems were thus not connect to the blast on a temporal basis. The examiner explained that cognitive effects of mild TBI were the greatest immediately after a concussion with resolution of the symptoms usually occurring within days or weeks following the event; however cognitive symptoms from a mild TBI do not suddenly appear years after the injury. Given what was described as malingerer, the examiner indicated that re-testing was not recommended. VA provided another examination in August 2016. The examiner detailed the Veteran's medical history, including his various VA examinations and history of sustaining TBIs during service. As with the previous examinations, the Veteran's headaches were noted to be a residual complication. The Veteran also reported problems with irritability. For instance, he had to leave a previous occupation in the prison system due to irritability and his difficulty in keeping track of the number of inmates. That is, he felt his skills with handling and tolerating inmate behavior was not sufficient. The Veteran also reported having problems with memory, particularly with number recollection. In the portion of the examination report labeled cognitive impairment and other residuals, the following symptoms were found: 1) a complaint of mild memory loss, attention, or concentration, or executive functions, but without objective evidence on testing, manifested by the Veteran's complaints of having difficulty recalling dates and appointments; 2) normal judgment; 3) routinely appropriate social interaction; 4) occasional disorientation to one of the of the four aspects or orientation, listed as person, time, place, or situation; 5) normal motor activity; 6) mildly impaired visual spatial orientation where the Veteran would occasionally become lost in unfamiliar surroundings, have difficulty reading maps or following direction, but retaining the ability to use assistive devices such as GPS; 7) three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family or other close relationship, manifested by headaches, sensitivity to sound, and sensitivity to light; 8) one or more neurobehavioral effects that did not interfere with workplace and/or social interactions; 9) normal communication; and 10) normal consciousness. The primary residual complication of the Veteran's TBI was his headaches. The examiner referred to neuropsychological testing that had been performed earlier in July 2016, noting that it had shown no evidence of either neurocognitive or psychological impairment secondary to the Veteran's brain injury. In the remarks section of the examination report, the examiner noted that none of the events described by the Veteran - the incidents wherein he sustained a TBI - affected his consciousness or cognition. The one episode that reportedly affected his hearing was transient with resolution. The examiner also noted that the symptoms described when Veteran reported his left pupil becoming irregular with impaired visual acuity had resolved after the Veteran underwent LASIK (e.g., vision correction) surgery in 2015, suggesting the problem was local to the eye and not a residual of his TBI. The examiner then discussed the Veteran's report to a neuropsychologist that his memory problems started nearly three years after his self-reported most serious blast exposure, disassociating the memory problems from the blast on a temporal basis. That is, explained the examiner, cognitive symptoms from mild TBI do not suddenly appear years aft the injury. The neuropsychologist had noted that the Veteran failed multiple measures of effort and validity for neurocognitive performance and psychological functioning by egregious margins. The examiner thus concluded that there were no measurable residual to the mild TBI. After a thorough review of the record, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 8045 for the Veteran's TBI. Primarily, the Veteran's TBI has resulted in headaches and in symptoms that fall within the table evaluating cognitive impairment and subjective symptoms. As noted above, the Veteran's headaches are separately rated and being remanded herein, and the Board will not discuss at this time whether a higher rating is warranted due to service-connected headaches. On VA examinations in December 2009, February 2012, and August 2016, the Veteran had a complaint of mild memory loss, but with no evidence of this symptom on objective testing. This merits a level 1 designation under the memory, attention, concentration, and executive function facet. During these examinations, the Veteran was either oriented to person, time, place, and situation, or occasionally disoriented to one of these four aspects. This merits a level 1 designation under the orientation facet of the table for evaluating cognitive impairment and other residuals of TBI not otherwise classified. Similarly, the Veteran only exhibited symptomatology approximating a level 1 designation under the visual spatial orientation facet. Regarding the subjective symptoms facet, the findings have varied. In December 2009, the VA examiner found three or more subjective symptoms that would moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationship, listed as marked fatigability, blurred or double visions, and headaches requiring rest periods during most days. On VA examination in February 2012, the examiner found subjective symptoms that would not interfere with work, instrumental activities of daily living, or work, family, or other close relationships, manifested by mild or occasional headaches and mild anxiety. On VA examination in August 2016, the examiner identified three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family or other close relationship, manifested by headaches, sensitivity to sound, and sensitivity to light. The finding in the December 2009 VA examination approximates a level 2 designation under the subjective symptoms facet for evaluating cognitive impairment and other residuals of TBI. However, one symptom identified by the examiner included the Veteran's headaches, which is separately evaluated. Thus, the December 2009 VA examiner's findings may not be used to assign a higher rating for the Veteran's TBI under Diagnostic Code 8045 because headaches are separately rated under Diagnostic Code 8100, and to rate the same symptom twice would violate VA's prohibition against pyramiding under 38 C.F.R. § 4.14 (2017). The remaining VA examinations provide findings that most closely reflect either level 1 or a level 0 designations under the subjective symptoms facet. Similarly, the findings under the neurobehavioral effects facet have all approximated a level 0 designation. Additionally, all other facets were normal or did not receive any designation in excess of zero. Application of DC 8045 to this table yields a 10 percent rating. Thus, an increased rating is not warranted under DC 8045. For the residuals of TBI other than the Veteran's service-connected headaches, the Board finds that an initial rating in excess of 10 percent is not warranted under DC 8045 for any time during the period on appeal. There is no reasonable doubt to be resolved in this matter. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. ORDER Entitlement to service connection for a psychiatric disorder is denied Entitlement to an initial rating in excess of 10 percent for residuals TBI other than migraines is denied. REMAND As noted in the introduction above, the a Notice of Disagreement (NOD) has been submitted regarding the reduction in disability rating from 30 percent to noncompensable for the Veteran's migraine headaches, effective November 30, 2017. When a timely NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. See Manlincon, 12 Vet. App. 238. The Board understands that the rating decisions in question were issued recently -within the last three to four months - however, because the Veteran's increased rating claim presently on appeal is inextricably intertwined with the reduction matter (discussed further below), the Board finds that prompt action on the reduction matter is necessary. Regarding the Veteran's claim of entitlement to an increased rating for migraines, rated as 30 percent prior to the reduction effected on November 30, 2017, the Board finds that adjudication of this matter must be deferred pending the resolution of the newly initiated appeal regarding the reduction for migraines. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case to the Veteran addressing the matter of whether reduction of the disability rating for migraines from 30 percent to noncompensable, effective November 30, 2017, was proper. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302 (b). Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ J. Schulman Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs