Citation Nr: 18120215 Decision Date: 07/20/18 Archive Date: 07/20/18 DOCKET NO. 09-24 497 DATE: July 20, 2018 ORDER Entitlement to a rating in excess of 10 percent for residuals of traumatic brain injury (TBI) manifested by headaches prior to May 2, 2016, is denied. From May 2, 2016, a rating of 40 percent, but not higher, for residuals of traumatic brain injury (TBI) manifested by headaches, is granted. FINDING OF FACT 1. For the period prior to May 2, 2016, the Veteran’s service-connected residuals of TBI have been manifested by no more than mild to moderate headaches, intermittent dizziness, and hypersensitivity to light and sound, which mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. 2. For the period from May 2, 2016 to the present day, the Veteran’s service-connected residuals of TBI have been manifested by headaches, dizziness, nausea, weakness, vision problems, and hypersensitivity to light and sound, which moderately interferes with work, instrumental activities of daily living, or work, family, or other close relationships. CONCLUSION OF LAW 1. For the period prior to March 2, 2016, the criteria for a disability rating in excess of 10 percent for service-connected residuals of TBI manifested by headaches have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017). 2. For the period from March 2, 2016 to the present day, the criteria for a disability rating of 40 percent for residuals of TBI manifested by headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.14, 4.124a, Diagnostic Codes (DC) 8045 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from August 1969 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts (Agency of Original Jurisdiction (AOJ)). This issue was previously before the Board in March 2017. At that time, the Board denied the Veteran’s claim for a rating above 10 percent for TBI. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans’ Claims (Court). In a February 2018 Order, the Court granted the parties’ Joint Motion for Partial Remand, which contended that the Board failed to provide an adequate statement of reasons and bases for its findings that (1) the Veteran is not entitled to a rating in excess of 10 percent for his TBI, and (2) that the Veteran is not entitled to a separate rating under 38 C.F.R. § 4.124a, DC 8100 for migraine headaches. Specifically, the remand took issue with the Board’s failure to consider a September 2016 lay statement made by the Veteran concerning his symptoms related to the TBI. As a preliminary matter, the Board finds that VA has satisfied its duties under the Veteran’s Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). Neither the Veteran nor his representative has argued otherwise. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to a rating in excess of 10 percent for residuals of TBI manifested by headaches Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. §4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In this matter, service connection was granted for traumatic syndrome manifested by headaches in a September 1975 rating decision. In April 2008, the Veteran asserted entitlement to an increased rating. He contends that his service-connected residuals of TBI manifested by headaches are more severe than is contemplated by the assigned 10 percent evaluation. The Veteran’s residuals of TBI manifested by headaches are evaluated under Diagnostic Code (DC) 8045. The regulations for TBI were revised during the pendency of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. 38 C.F.R. § 4.124, Note (5) (2016). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). However, a veteran whose residuals of TBI were rated by VA under a prior version of 38 C.F.R. 4.124a, DC 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The Veteran has requested review under the new criteria. Prior to October 23, 2008, brain disease due to trauma under DC 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, was to be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated at a maximum of 10 percent under DC 9304, “Dementia due to head trauma.” This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. Part 4, § 4.124a, DC 8045. As in effect from October 23, 2008, DC 8045 states 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. 38 C.F.R. § 4.124a, 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. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of a 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 (SMC) 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. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. Based upon a review of the evidence, the Board finds that a rating in excess of 10 percent for service-connected residuals of TBI manifested by headaches is not warranted at any time prior to May 2, 2016. However, from May 2, 2016 to the present day, the evidence demonstrates that the Veteran’s TBI manifests in symptoms that more closely approximate those warranting a 40 percent rating. The Veteran was afforded a VA examination in June 2008, at which time he reported severe headaches dating from his in-service head injury. The Veteran indicated that he works for the United States Postal Service, and was assigned to work inside due to the severity of his headaches. He reported that he loses an average of one to two weeks of work per year due to his headaches. The Veteran described bifrontal headaches with nausea, diffuse weakness, and flashing lights. He previously took Aspirin to treat his headaches, but discontinued its use due to his tinnitus. He reported that his headaches affect his daily activities and relationships with family members. He stated that his headaches cause anxiety. Upon physical examination, the Veteran’s cranial nerves II-XII were intact and his motor skills were 5/5. He had no sensory deficits. His cognition, including speech, language, comprehension, and basic knowledge, was intact. In a June 2008 VA psychological examination, the Veteran endorsed daily headaches at 7/10 in severity. He treats his headaches with Tylenol, which decreases his pain to 3/10. He has no difficulties with activities of daily living. His long and short-term memory is intact. His concentration is good. The Veteran was afforded a VA examination in July 2008 at which time he reported frontal headaches with stabbing pain that varies to a dull ache. He endorsed photophobia. His headaches are treated with over-the-counter medication. He reported that he routinely performs activities of daily living while experiencing headache pain. He reported that his headaches are 7-8/10 in severity. He experiences daily tinnitus, and occasional vertigo with headaches. He does not experience vomiting. The Veteran has no impairment of memory, coordination, vision, or speech. He denied confusion. He has no motor loss, and his deep tendon reflexes were intact. There were no cognitive deficits. The examiner diagnosed the Veteran with a headache without visual or motor deficits. The examiner further noted that the Veteran’s headaches have no occupational effects, and no effects on his activities of daily living. Specifically, the examiner documented the Veteran’s report that “he suffers with daily headaches but continues to go about his business; otherwise he would be in bed all day.” In his July 2009 VA Form 9, the Veteran reported that his headache pain is currently treated with weekly acupuncture. A June 2009 private treatment record confirmed that the Veteran receives acupuncture treatment for his headaches. Private treatment records document the Veteran’s continuing report of headache pain. At a January 15, 2013 VA mental disorders examination, the Veteran discussed his longstanding history of headaches. Importantly, the VA examiner indicated that the Veteran “had a good work record for over 40 years,” and that “[d]espite having headaches, has been able to function well at work.” The Veteran was afforded another VA examination in February 2013 at which time he described continuing headache pain. There were no complaints of impairment of memory, attention, concentration, or executive functions. He had normal judgment, and his social interaction was routinely appropriate. He was well-oriented. His motor activity and visual spatial orientation were intact. The examiner noted that the Veteran’s TBI results in “[s]ubjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or close relationships. Examples are: mild or occasional headaches, mild anxiety.” The examiner reported that the Veteran’s TBI does not cause neurobehavioral effects. The Veteran is able to communicate and comprehend spoken and written language; he has normal consciousness. Neurocognitive testing revealed normal results. The examiner noted that the Veteran’s “[p]ersistent headaches may interfere at [a] job that requires full brain functions without headaches.” Pursuant to the October 2015 Board Remand, the Veteran was afforded a VA TBI examination in May 2016. The examiner noted that the Veteran’s TBI has not manifested in complaints of impaired memory, attention, concentration, or executive functions. The Veteran has normal judgment. His social interaction is routinely appropriate. He is always oriented to person, time, place, and situation. The Veteran’s motor activity was normal. His visual spatial orientation was also normal. The examiner stated that the Veteran’s TBI manifested in “[t]hree or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships.” The Veteran’s subjective symptoms include headaches, tinnitus, hypersensitivity to sound, and hypersensitivity to light. He experiences irritability. The Veteran exhibited normal consciousness and normal results on cognitive assessment. The examiner determined that the Veteran’s residuals of TBI impact his ability to work because his headache with light/sound sensitivity, and irritability affect his ability to focus/concentrate on work tasks. A separate May 2016 VA examination report addressed the Veteran’s traumatic headaches, which occur approximately four times per week and last for two hours. The Veteran treats his headaches with over-the-counter analgesics. He described his headache pain as pulsating/throbbing pain on both sides of his head, which worsens with physical activity. The Veteran endorsed nausea, photophobia, and phonophobia. The Veteran did not report characteristic prostrating attacks of headache pain. The examiner reported that the Veteran’s “[h]eadaches affect the ability to focus/concentrate on work tasks.” In a September 2016 statement, the Veteran reported that his headaches occurred one to two hours per day, three times per week, and required rest periods. He also endorsed having vertigo and dizziness that require rest that could last anywhere from two hours to two days. The Veteran also noted having occasional blurred/double vision once or twice per week. In this statement, the Veteran also indicated that he had shorter memory than he used to, and that it is harder for him to concentrate. He also endorsed getting irritated, especially when driving a vehicle, and said he lacks motivation and sleeps more frequently. It should be noted that the Veteran suffers from an anxiety/dysthymic disorder that is not presently service-connected, and it was noted during an August 2016 mental health evaluation that the Veteran’s irritability, depression, and problems with motivation and sleep are related strictly to his psychiatric condition, not his TBI. As such, these symptoms may not be considered for the evaluation of his TBI. The Board will discuss the Veteran’s complaints of memory and concentration problems below. As in effect prior to October 23, 2008, DC 8045 provided that purely subjective complaints such as a headache were to be rated at a maximum of 10 percent under DC 9304. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. As there is no evidence of multi-infarct dementia associated with brain trauma, the Board finds that a rating in excess of 10 percent is not warranted for headaches under DC 8045, as in effect prior to October 23, 2008. The Board also finds that a higher rating is not warranted under DC 8045, as in effect from October 23, 2008 for the time period prior to May 2, 2016. As noted above, the Veteran is service-connected for residuals of TBI manifested by headaches, a subjective symptom. Under the revised rating criteria, a rating in excess of 10 percent requires the assignment of a level of impairment of 2 or higher for one or more facets of TBI related to cognitive impairment and/or subjective symptoms. While each of his VA examinations prior to May 2, 2016 indicated “normal” ratings for memory, concentration, attention, and executive functions, as well as judgment, social interaction, orientation, motor activity, communication, and visual/spatial awareness, the Veteran’s most serious TBI effects pertain to his subjective symptoms, most notably his headaches. Indeed, it is undisputed that the Veteran has suffered from headaches, to include hypersensitivity to light and sound, nausea, and dizziness as a result of his TBI during the appeal period. Prior to May 2, 2016, the Veteran’s subjective symptoms have not been shown to moderately interfere with employment, instrumental activities of daily living, or work, family or other close relationships. Although the Veteran reported headaches at 7-8/10 in severity at the July 2008 VA examination, he further stated that he is able to go about his business while experiencing headache pain. A January 2013 VA examiner indicated that the Veteran “had a good work record for over 40 years,” and that “[d]espite having headaches, has been able to function well at work.” The February 2013 VA examiner specifically reported after a full and thorough examination of the Veteran that his TBI residuals manifested in subjective symptoms which did not interfere with his work, instrumental activities of daily living, or relationships. The Veteran has not indicated at any time during the period prior to May 2, 2016 that his TBI residuals interfered with his ability to perform instrumental activities of daily living, or maintain his family relationships. A June 2008 VA mental health examination indicated that the Veteran cooks and cleans and “generally has not difficulty with these types of tasks.” Based on the above, pursuant to the table of “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” this level of impairment warrants a rating of “1”. Critically, the evidence of record does not show that the Veteran’s subjective symptoms, including headaches, dizziness, nausea, and hypersensitivity to sound and light, moderately interfere with his employment, instrumental activities of daily living, or his relationships, and so cannot be rated above a “1” on the “Evaluation Of Cognitive Impairment” table. See the VA examination reports dated February 2013, January 2013 July 2008, and June 2008. Thus, the medical evidence weighs against a rating in excess of 10 percent for residuals of TBI prior to May 2, 2016. As noted above, on May 2, 2016, the Veteran appeared for a VA TBI examination, at which point he noted having headaches four times per week that last for two hours. He described his headache pain as pulsating/throbbing pain on both sides of his head, which worsens with physical activity. The Veteran endorsed nausea, photophobia, and phonophobia. The Veteran did not report characteristic prostrating attacks of headache pain. The examiner reported that the Veteran’s “[h]eadaches affect the ability to focus/concentrate on work tasks.” The Veteran elaborated on his symptoms in his September 2016 lay statement, consistently noting that he has headaches requiring periods of rest three times a week, for up to two hours at a time. The Veteran also noted in clear terms how his dizziness can last for extended periods of time, requiring downtime, and that his blurred vision occurred once or twice per week. Taking the findings of the May 2, 2016 examiner—who pertinently noted that the Veteran’s subjective symptoms are now affecting his ability to focus and concentrate on work tasks at a rate of up to 4 times per week—and the competent and credible statements of the Veteran submitted in September 2016, indicating in pertinent part that his headaches at times require rest periods, the Board will resolve all doubt in the Veteran’s favor and find that from May 2, 2016 to the present, pursuant to the table of “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” this level of impairment warrants a rating of “2”. This is based on a finding that from May 2, 2016 on, it is apparent in the evidence that the Veteran’s subjective symptoms of TBI moderately interfere with his work. His symptoms closely approximate the examples provided for this level, to include headaches requiring rest periods during most days. To this extent, the appeal is granted. The Board finds that the Veteran is not entitled to a higher rating [i.e., greater than 10 percent prior to May 2, 2016, and greater than 40 percent from May 2, 2016] under any other criteria listed in DC 8045. The Board recognizes that in September 2016, the Veteran reported that he had a shorter memory and that it is harder for him to concentrate. Indeed, the May 2016 VA examiner specifically noted that the Veteran’s subjective symptoms, to include headaches, caused the Veteran to lose focus and have trouble concentrating. The Board finds that such symptoms are contemplated in the increased 40 percent rating for subjective headache residuals and their effects as of May 2, 2016. Although the Veteran had cognitive and emotional/behavioral dysfunction symptoms including irritability and mild anxiety, these symptoms have been identified as related to his nonservice-connected anxiety and dysthymic disorder. In addition, the Veteran has been separately service-connected for tinnitus, due to his TBI. The Board cannot also consider his tinnitus as a symptom of his TBI, as evaluating the same manifestations under a separate diagnosis would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14. The Board has considered whether the Veteran’s subjective complaints of dizziness qualify for a separate disability rating under DC 6204 (peripheral vestibular disorders). 38 C.F.R. 4.87a, DC 6204 (2016). DC 6204 allows a 10 percent disability rating for occasional dizziness and a 30 percent disability rating for dizziness with occasional staggering. As the Veteran’s dizziness is a symptom of his TBI and not a distinct, diagnosed disorder, it does not qualify for a separate rating under DC 8045-6204. See the VA examination reports dated May 2016, February 2013, July 2008, and June 2008. The Board recognizes that DC 8045 instructs, “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.” 38 C.F.R. § 4.124a, DC 8045. To this end, the Board has considered whether a separate disability rating is warranted for the Veteran’s headaches under DC 8100 (migraine headaches). The Board initially notes that VA and private treatment records, as well as VA examinations have documented the Veteran’s headaches as a residual symptom of his TBI. As such, the headaches are appropriately characterized as subjective symptoms under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table in DC 8045. That stated, if a separate rating for headaches would be more advantageous to the Veteran under Diagnostic Code 8100, such should be considered. Indeed, the Joint Motion specifically instructed the Board to address whether the Veteran’s headaches are more appropriately rated under DC 8100, in light of the Veteran’s September 2016 statement that his headaches occur three times per week, one to two hours per day requiring rest periods. Even when considering the Veteran’s September 2016 statement, the Board finds that rating the Veteran’s headaches under DC 8100 instead of 8045 would not avail the Veteran. Indeed, the Veteran would not be entitled to a compensable evaluation under DC 8100. To this end, DC 8100 establishes the following disability ratings for migraine headaches: a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating for prostrating attacks occurring on an average once a month over the last several months; a 10 percent rating for prostrating attacks averaging one in a 2-month period over the last several months; and a 0 (zero) percent rating for less frequent attacks. See 38 C.F.R. § 4.124a (2017). Neither the rating criteria nor the Court has defined “prostrating.” By way of reference, according to Webster’s New World Dictionary of American English, Third College Edition (p. 1080, 3rd College Ed. (1986)), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary (p. 1554, 31st Ed. (2007)), in which “prostration” is defined as “extreme exhaustion or powerlessness.” At no time during the appeal period, does the evidence demonstrate that the Veteran had characteristic prostrating attacks of headache symptoms. Although the Veteran has reported daily headache episodes, the headaches must be also of a specific prostrating character. For all times prior to May 2, 2016, the evidence demonstrates that the Veteran was largely able to function and work through his headaches. Although he did take some time off from work, there is no indication that his headaches were prostrating, either by his own statements or based on medical findings found in VA examination reports. For the period from May 2, 2016, although the Veteran indicated that on 3 days a week, his headaches required “rest periods,” the evidence in this case is against a finding that such indicates that he suffers from “utter physical exhaustion or helplessness,” three days a week, two hours a day. Indeed, when examined on May 2, 2016, the VA examiner specifically noted symptoms of pulsating/throbbing pain on both sides of his head, which worsens with physical activity, nausea, photophobia, and phonophobia and some impairment of focus and concentration. Despite making these findings, in the medical examiner’s opinion, the Veteran did not describe, nor did the examiner objectively observe headaches that were prostrating in nature. There is no indication in the file suggesting that the Veteran’s headaches, however frequent, render the Veteran completely helpless. While the Board in no way calls into question that from May 2, 2016 the Veteran has needed to rest during headaches, such is a symptom most appropriately contemplated by the 40 percent rating under DC 8045. Diagnostic Code 8100 contemplates more severe headaches, for which the evidence (lay or medical) does not indicate exist. Therefore, if the Board were to remove headaches from consideration under DC 8045 and instead rate them separately under DC 8100, the Veteran would not be compensated at a higher rate, both prior to and after May 2, 2016. The Board adds that is no indication of an exceptional disability picture such that the schedular evaluation for the service-connected residuals of TBI manifested by headaches are inadequate. The Veteran’s residuals of TBI symptoms are reflected in the rating criteria, which contemplate impairment of memory, attention, concentration, or executive functions impairment of judgment impairment of social interaction, impairment of orientation, impairment of motor activity, impairment of visual spatial orientation, subjective symptoms, neurobehavioral effects, impairment of communication, and impairment of consciousness. As indicated above, the Veteran’s symptoms of mild to moderate headaches, intermittent dizziness, photophobia, and phonophobia are specifically contemplated in the applicable diagnostic code. See 38 C.F.R. § 4.124a, DC 8045, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table. (CONTINUED ON NEXT PAGE) In sum, the Board finds that prior to May 2, 2016, a rating higher than the currently assigned 10 percent for the Veteran’s TBI residuals is not warranted. From May 2, 2016, a 40 percent rating is granted. V. CHIAPPETTA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel