Citation Nr: 20036714 Decision Date: 05/26/20 Archive Date: 05/28/20 DOCKET NO. 12-31 530 DATE: May 26, 2020 ORDER An effective date earlier than October 23, 2008 for a separate rating for traumatic brain injury (TBI) residuals (other than posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and anxiety) is denied. For the rating period from November 7, 2012 to March 10, 2015, a disability rating in excess of 10 percent for TBI residuals (other than PTSD, MDD, and anxiety) is denied. The reduction from 10 percent rating to 0 percent for TBI residuals (other than PTSD, MDD, and anxiety) effective March 10, 2015 was not proper, so restoration of the 10 percent rating for TBI residuals is granted. For the rating period from March 10, 2015, a disability rating for TBI residuals (other than PTSD, MDD, and anxiety) in excess of 10 percent is denied. FINDINGS OF FACT 1. A July 2007 rating decision denying a rating in excess of 50 percent for residuals of TBI (adjustment disorder and post-concussion disorder due to TBI) became final. 2. There was no pending claim for increased (or separate) rating for TBI residuals prior to May 27, 2010. 3. A new claim for increased rating for all service-connected disabilities, including residuals of TBI, was received on May 27, 2010. 4. A March 2011 rating decision granted a separate 10 percent rating for residuals of TBI (other than psychiatric residuals of PTSD, MDD, and anxiety), which is currently effective from October 23, 2008, the date the revised criteria for residuals of TBI under Diagnostic Code 8045 became effective. 5. Although the RO granted an earlier effective date of October 23, 2008 for TBI residuals (other than PTSD, MDD, and anxiety), as the separate rating for TBI residuals arose from a claim for increase rating received May 27, 2010, the earliest effective date allowable for the separate rating for TBI residuals is from May 27, 2009, one year prior to receipt of the claim; therefore, an effective date earlier than October 23, 2008 for a separate rating for TBI residuals (other than PTSD, MDD, and anxiety) is not warranted. 6. For the rating period from November 7, 2012 to March 10, 2015, TBI residuals are either more appropriately rated under separate diagnostic codes, or consideration under the various facets of the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table have resulted in a severity of “1” or a lower disability rating than that obtained when rated under a separate Diagnostic Code. 7. A June 2015 rating decision reduced the rating for service-connected TBI residuals from 10 percent to 0 percent, effective March 10, 2015. 8. The June 2015 rating decision did not reduce the Veteran’s overall level of compensation. 9. The evidence of record does not show improvement in the service-connected TBI residuals (other than PTSD, MDD, and anxiety). 10. For the rating period from March 10, 2015, TBI residuals (other than PTSD, MDD, and anxiety) were either more appropriately rated under separate diagnostic codes or consideration under the various facets of the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table have resulted in a severity of “1” or a lower disability rating than that obtained when rated under a separate Diagnostic Code. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 23, 2008 for a separate rating for TBI residuals (other than PTSD, MDD, and anxiety) have not been met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 2. For the rating period from November 7, 2012 to March 10, 2015,the criteria for a disability rating in excess of 10 percent for TBI residuals (other than PTSD, MDD, and anxiety) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.25, 4.124a, Diagnostic Code (DC) 8045. 3. The reduction of the disability rating for TBI residuals (other than PTSD, MDD, and anxiety) from 10 percent rating to 0 percent effective March 10, 2015 was not proper, and the 10 percent rating will be restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.124a, DC 8045. 4. For the rating period from March 10, 2015, the criteria for a disability rating in excess of 10 percent for TBI residuals (other than PTSD, MDD, and anxiety) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from July 1996 to June 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision from the Regional Office (RO), which, in pertinent part, granted a separate 10 percent rating for TBI residuals (other than PTSD, MDD, and anxiety) and granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective May 27, 2010 respectively. The Veteran filed a timely Notice of Disagreement (NOD) with the effective date assigned for a separate rating for TBI residuals and TDIU. A subsequent September 2015 rating decision granted an earlier effective date of October 23, 2008 for the separate 10 percent rating for TBI residuals; however, as the Veteran seeks an effective date back to 2004, the effective date for a separate rating for TBI residuals remains on appeal. As for an earlier effective date for TDIU, a February 2020 supplemental statement of the case (SSOC) continued the denial of an effective date earlier than May 27, 2010 for TDIU. In a March 2020 NOD, the Veteran opted into the modernized review system (AMA) for the appeal for an earlier effective date for TDIU only. 38 C.F.R. § 19.2(d). As such, the issues of an earlier effective date for TDIU will be addressed in a separate Board Decision in accordance with the AMA review system. During the course of the earlier effective date appeal for TBI residuals, the Veteran also asserted that the TBI residuals were more severe than contemplated by the 10 percent rating, which created a new claim for increased rating in excess of 10 percent for TBI residuals. See November 2012 VA Form 9, see also August 2013 Deferred Rating. In a June 2015 rating decision, the RO assigned a 0 percent rating for TBI residuals, effective March 10, 2015. To the extent that the Veteran has appealed the June 2015 rating decision that reduced the rating for TBI residuals, then in effect for five years, from 10 percent to 0 percent, this constitutes a rating reduction appeal effective March 10, 2015. 38 C.F.R. § 3.344; see Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (quoting Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991)) (holding Board “incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating”); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In December 2015 and January 2016 Correspondence, the Veteran withdrew the request for a Board hearing. In December 2017, the Board remanded the issues on appeal to obtain a VA TBI examination performed by a qualified specialist in physiatry, neurology, neurosurgery, or psychiatry. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the December 2017 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. The Veteran, representative, and the evidence have not raised any specific contentions regarding the duties to notify or assist. 1. Earlier Effective Date than October 23, 2008 for TBI residuals The Veteran contends that a separate rating for residuals of TBI (other than PTSD, MDD, and anxiety) should go back to June 2004, when he separated from service. The Veteran contends that he filed a claim for TBI in 2004 and was granted a 50 percent rating for adjustment disorder and post-concussion disorder as residuals of TBI, effective June 30, 2004. However, the Veteran asserts that he is confused by the later award of separate 10 percent rating for TBI residuals from October 23, 2008, as he thought he had already been rated for TBI from June 2004. As such, the Veteran asserts that the effective date for the separate rating for TBI residuals (other than PTSD, MDD, and anxiety) should go back to June 2004. See March 20l1 NOD, August 2013 Correspondence. The effective date of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date a veteran applied for benefits. See Roper v. Nicholson, 20 Vet. App. 173 (2006). Determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). An informal claim is any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). To obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of the claim. If the evidence showed that the increase occurred more than one year prior to the date of the claim, then the effective date is no earlier than the date of the claim. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (holding that, in order to obtain an increased disability rating earlier than the date of the claim for increase, the evidence must show that the increase in disability occurred within the one year period prior to the date of claim for increase); VAOPGCPREC 12-98. TBI residuals (other psychiatric residuals) are currently assigned a separate 10 percent rating, effective October 23, 2008. By way of history, prior to October 23, 2008, all residuals of TBI (psychiatric, cognitive, and subjective) were combined and assigned a single 50 percent rating from June 30, 2004, the date after service separation. The Veteran did not appeal the effective date or evaluation of TBI residuals assigned in the January 2006 rating decision. In November 2006, the Veteran filed a new claim for TDIU, which was somehow also treated as a claim for increased rating for all service-connected disabilities. A July 2007 rating decision denied TDIU and a higher disability rating for TBI residuals. The Veteran submitted a July 2008 NOD as to the denial of TDIU in the July 2007 rating decision, but did not appeal the rating assigned for TBI residuals; therefore, the July 2007 rating decision became final as to the rating of TBI residuals. The RO created a new claim for periodic re-evaluation of TBI residuals in October 2007, which included scheduling December 2007 VA examination. In a December 2007 rating decision, the RO continued a single 50 percent rating for all residuals of TBI (including psychiatric residuals). The Veteran did not appeal the July 2007 or December 2007 rating decisions as it relates to TBI residuals. As the Veteran did not submit a timely NOD to the July 2007 and December 2007 rating decisions denying a higher rating for residuals of TBI, and new and material evidence was not received within one year of the July 2007 and December 2007 rating decisions, the July and December 2007 rating decisions became final as to the single 50 percent rating assigned for residuals of TBI (which included psychiatric residuals). A new claim for increased rating for TBI residuals was received on May 27, 2010, and this is claim from which the current effective date appeal for the separate rating for TBI residuals (other than PTSD MDD, and anxiety) arose. Prior to receipt of the May 2010 claim for increase, the criteria for rating a TBI were revised to allow for a separate rating for TBI residuals under DC 8045 that do not overlap with any other comorbid mental, neurological, or physical condition. See 73 Fed. Reg. 54693 (Sept. 23, 2008), and the effective date for these revisions is October 23, 2008. See also 38 C.F.R. § 4.124a, DC 8045, Note (1) and (5). Note (1) to § 4.124a reads that where there is an overlap of TBI manifestations with manifestations of a co-morbid mental, neurologic, or other physical disorder that can be separately evaluated under another diagnostic code, which manifestations 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 (5) to § 4.124a reads that a veteran may request review under the new regulations, and a rating under the revised criteria will not have an effective date prior to October 23, 2008. The March 2011 rating decision assigned a separate 10 percent rating for TBI residuals (other than psychiatric residuals) based on the revised (October 23, 2008) rating criteria for residuals of TBI pursuant to 38 C.F.R. § 4.124a, DC 8045. In a March 2011 NOD, the Veteran appealed the effective date (though not the rating) assigned for the separate rating for TBI residuals. As the current effective date claim for a separate rating for TBI residuals arose from a claim received May 27, 2010, and there was no other formal or informal claim for TBI residuals pending prior to receipt of the May 27, 2010 claim for increase rating for residuals of TBI, the earliest formal or informal claim for a separate rating for TBI residuals is the May 27, 2010 claim. Based on the May 2010 claim, the earliest effective date allowable for a separate rating for TBI residuals is May 27, 2009, one year prior to receipt of the claim for increase, if entitlement to a higher rating arose during that one year period. See Gaston, 605 F.3d at 984 (holding that, in order to obtain an increased disability rating earlier than the date of the claim for increase, the evidence must show that the increase in disability occurred within the one year period prior to the date of claim for increase); VAOPGCPREC 12-98. In this case, a September 2015 rating decision granted an earlier effective date of October 23, 2008, the date the revised TBI rating criteria came into effect, for a separate rating for TBI residuals. However, as noted above, the current effective date appeal for a separate rating for TBI residuals arose from a claim received May 27, 2010, which is after the effective date of the revised TBI rating criteria; therefore, the earliest effective date possible for a separate rating for TBI residuals is from May 27, 2009 (one year prior to the claim), even if entitlement to a higher rating had arisen during that one year period, which does not appear to be the case based on the RO’s grant of rating to October 23, 2008. Although the Board will not disturb the currently assigned October 23, 2008 effective date for a separate rating for TBI residuals, an effective date earlier than October 23, 2008 for a separate rating for TBI residuals is not warranted. On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. § 3.400, and no effective date for the award of a separate rating for TBI residuals (other than PTSD, MDD, and anxiety) earlier than May 27, 2009 (one year prior to the TBI claim) is assignable even if entitlement to the higher or separate rating had arisen during that one year period, the appeal for an earlier effective date as to the issue of a separate rating for TBI residuals is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that an effective date prior to October 23, 2008 for the award of a separate rating for TBI residuals (other than PTSD, MDD, and anxiety) is not warranted as a matter of law. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. TBI Rating Criteria Diagnostic Code 8045 provides for the rating of TBI. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, 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. 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. Adjudicators are to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, they are to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Id. Adjudicators are 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, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Adjudicators are 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, adjudicators are to evaluate under the most appropriate Diagnostic Code. Adjudicators are to 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. Id. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 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. Adjudicators are to assign a 100-percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” adjudicators are to assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. The rating assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury (TBI) not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. Id. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a 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. Id. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Id. 2. Rating TBI residuals from November 7, 2012 to March 10, 2015 TBI residuals (other than PTSD, MDD, and anxiety) are assigned a 10 percent rating under 38 C.F.R. § 4.124a, DC 8045, prior to March 10, 2015. In a November 2012 statement, the Veteran asserted that the service-connected TBI residuals are more severe than contemplated by the 10 percent rating. See November 2012 VA Form 9. A July 2014 statement and the April 2015 DRO hearing indicates that the predominant residual of TBI are symptoms that overlap with the Veteran’s service-connected psychiatric disorder. Specifically, the Veteran and his family have asserted that the TBI residuals have manifested as outburst of anger, inappropriate remarks at times, and difficulty interacting with others. The Veteran also endorsed low frustration tolerance, difficulty managing multiple tasks, and difficulty with attention, concentration, and memory. See July 2014 lay statement, April 2015 DRO hearing. TBI residuals (other than psychiatric residuals) have been assigned a 10 percent rating under DC 8045 for the rating period from November 7, 2012 to March 10, 2010. 38 C.F.R. § 4.124a. By way of history, the record reflects that the Veteran had a skydiving accident during service in June 2003, which resulted in a closed head injury. The duration of loss of consciousness following the closed head injury was not documented, but the Veteran was noted to be awake, alert, and oriented to person and place, but not time. A June 2003 MRI of the head showed frontal sinus fracture, some hemorrhaging and contusion on the brain tissue, and abnormal signal intensity in the area of the axonal brain injury. After the closed head injury, the Veteran reported problems with tension headaches, dizziness, tinnitus, irritability, mood swings, sleep difficulty, and memory problems. See October 2003, November 2003, January 2004, April 2004 service treatment records. Neurology and neuropsychological evaluations conducted between 2003 and 2004 reflect mild to moderate cognitive impairment in the year following the June 2003 closed head injury, which gradually improved in subsequent years. Neurology examinations conducted in November 2003 and April 2004 reflect that the Veteran was alert and oriented to person, place and time; cranial nerves II-XII were intact, speech was clear and fluent with no apparent language dysfunction, motor function was 5 out of 5 (normal) in the bilateral upper and lower extremities, and gait and station was normal. See April 2004 service treatment record, November 2003 Social Security Administration (SSA) records. During neuropsychological testing in January 2004, the Veteran was noted to have some difficulties with verbal abilities, mildly impaired attention and concentration, mild to moderately impaired range on verbal memory testing, and some slowing on processing speed consistent with his axonal brain injury; however, visual memory abilities were in the high to superior range. Initial diagnosis was Dementia due to TBI, mild to moderate. See January 2004 service treatment record. Neuropsychological testing conducted in July 2004 shows improvement in cognitive abilities compared to January 2004 neuropsychological testing. Specifically, the Veteran was noted to be of average to superior intellectual functioning “with surprisingly little impaired cognitive abilities” as a result of the TBI. Notably he had significant areas of strength and above average performance in many areas of intellectual and memory functioning. His greatest change as a result of the TBI was his exaggerated social and interpersonal disinhibition and maintenance of focus. Compared to testing in January 2004, the Veteran showed significant improvement in perceptual functioning, improvement in verbal skills, average to high average memory functioning, and average to high average processing speed and cognitive flexibility. There was borderline impaired performance in drawing complex figures due to some carelessness or inattentiveness, and psychological scales indicated an overlay of irritability and frustration consistent with subjective reports of mood swings, tendency towards anger outburst, and aggressive attitude in expression, but no indications of self-harm or physical aggression. At the time of the July 2004 neuropsychological assessment, diagnosis was mild Dementia with personality change due to TBI, and the most apparent symptoms were attributed to the Veteran social pragmatics and personality change. See July 2004 private treatment record. The Veteran had subsequent neuropsychological evaluations in January 2006 and March 2009. During the January 2006 evaluation, it was noted that the Veteran made inappropriate remarks during testing, was sarcastic, and devalued difficult items. The Veteran’s intelligence was in the 70th percentile, he was only mildly slow on Stroop Test during processing speed and distractibility trials, but above average on Trail Bs. His problem solving and memory skills were intact, but he had some difficulty on the speech sounds perception test. He produced an invalid score on personality assessment inventory (PAI) due to exaggerated responding. Diagnosis was mild Cognitive Disorder and Personality Change due to closed head injury and adjustment disorder with mixed emotion and conduct. It was noted that the Veteran met the criteria for retention in the military despite his residuals cognitive and psychiatric residuals of TBI. See January 2006 SSA records. Neurological and neuropsychological evaluations were also conducted in March 2009. During a neurology follow up the Veteran continued to endorse residual problems with personality changes including mood swings, irritability, outburst of anger, as well as tinnitus, lightheadedness, headaches, decreased memory and concentration since the in-service TBI. The Veteran reported that headaches occurred once a week but resolved completely with Advil. Mini-mental status examination showed that the Veteran was alert and oriented to person, place, and time. He was able to recall two out of three items after 5 minutes and one with prompting. He could spell “world” backwards, perform serial 7s without error, and name 24 animals in one minute. His ability to follow 3-step commands were intact; speech was fluent; and naming, reading, writing, and repetition was intact. Additionally, cranial nerves II-XII were intact, motor functioning was normal throughout, coordination was intact without involuntary movements or tremors, and gait and reflexes were normal. Diagnosis was mild TBI; post-concussive syndrome with a constellation of symptoms and very mild cognitive defects in terms of memory but otherwise cognitively intact; and post-traumatic headaches that were very mild in severity and not disabling as they resolved completely on Advil. See March 2009 SSA record. A March 2009 neuropsychological evaluation shows that the Veteran reported his main problem since the in-service TBI was controlling anger outburst, which he managed with medical marijuana, which he reported improved irritability and mood swings. The Veteran reported trouble finishing tasks, some memory difficulty, headaches, and sleep disturbance. He reported that he was working as much as 10 hours daily doing free-lance work building websites. Upon observation, the Veteran demonstrated a pleasant affect and was self-ambulatory with fluent gait, upright posture, and no pain behavior. Speech was noted to be appropriate and spontaneous. The Veteran was noted to be compliant, attended to tasks, and understood directions easily. See March 2009 SSA record. Upon neuropsychological evaluation in March 2009, the Veteran passed symptoms validity across all trials. His performance improved compared to his 2006 evaluation, indicating good effort as well. For example, he was previously in the 89th percentile for finger tapping and was now in the 93rd percentile. The Veteran was in the high average range on Stroop Testing for information processing speed and resistance to distraction. Orientation was intact; attention and concentration was in the average to superior range with superior mental flexibility to divide and shift attention on a visual scanning task without errors. Learning memory was in the average range, motor function was in the average to superior range, and visual spatial functioning was in the average to high average range. The Veteran did have some peak elevations in terms of assessment of mood and personality, as he reported some suicidal ideation (though no plan or intent) and some anti-social tendencies. As such, no cognitive disorder was diagnosed. The only diagnosis was personality disorder on Axis II. The neuropsychologist noted that the Veteran improved and had fully stabilized from a cognitive standpoint; however, his is personality characteristics were the likely cause of any worsening mood or anger problems. See March 2009 SSA record. At a VA neuropsychological evaluation in July 2009, the Veteran reported a history of parachute accident with concussion, but stated that he did not recall how long he lost consciousness and had no memory of events for four days after the accident; however, he was able to recall events leading up to the accident. Additionally, his wife at that time noted that the Veteran was conscious and communicating for briefs periods during the four-day period following the injury. The Veteran reported current problems with memory and attention, reporting that he used his phone to help him remember appointments. The Veteran also endorsed mood and anger problems since the head injury, which he managed with marijuana. The VA neuropsychologist observed the Veteran to be cooperative with normal speech, full range and affect, appropriate thought content, intact receptive and expressive skills, and good insight. Diagnosis was PTSD, rule out major depressive disorder. See July 2009 VA treatment record. During an August 2009 polytrauma consultation, the Veteran endorsed continued problems with irritability, memory, and concentration. He endorsed getting lost in familiar places when driving at times, but was able to use GPS. The Veteran reported some sensitive to bright light, headaches once every other week, which he easily treated with Advil, and some dizziness and balance issues, which he deemed only “slightly limiting.” No vestibular balance abnormalities were evidenced on examination as his mobility was normal for walking, he was able to stand with his eyes closed without difficulty, Romberg and ulnar drift were negative, cranial nerves were intact, and there were no abnormal eye movements with quick head motions. The Veteran otherwise reported that he was independent in instrumental activities of daily living and driving, and endorsed engaging in activities such as yoga and playing Wii. See August 2009 VA treatment record. Private treatment records dated from 2009 to 2011 reflect that the Veteran continued to report that his primary problem since the in-service TBI was mood disturbance with anger outburst, such as yelling at people or breaking things in anger when upset or frustrated, as well as some memory problems. Therapy notes reflect reports of improvement in mood and emotional regulation with less intense episodes of anger. The Veteran displayed appropriate appearance and behavior, normal speech, normal orientation, and intact judgment and insight during mental status examinations. The Veteran reported that he was still managing his computer program business, he had plans to attend and do a presentation at a TBI retreat, and he endorsed many extracurricular activities. See May 2009, September 2009, July 2010, January 2011, February 2011. VA treatment records dated prior to March 10, 2015, including a neuropsychological evaluation conducted in January 2012, reflect steady improvement in neuropsychological evaluations over the years to the point that he no longer demonstrated cognitive impairment in any area tested. Although the Veteran subjectively reported significant memory and cognitive difficulties, and also reported ongoing problems with anger outburst and interpersonal difficulties, he indicated that these problems were well managed by the use of marijuana. The examiner observed irritable mood with mild hostility, coherent and goal directed thought content, no unusual movements or pain behavior, and independent ambulation. While it was noted that he did have some mood lability and challenging personality traits, he did not require any further specialized care related to the TBI, as cognitive impairment was noted to be negligible. See January 2012, June 2012, July 2012 VA treatment records. The Veteran underwent VA TBI examinations in 2010 and 2014, which were not conducted by a specialist qualified to evaluate TBI (e.g., physiatry, neurology, neurosurgery, or psychiatry); however, the Board has considered the 2010 and 2014 examination reports in the context of evidence as a whole prior to March 10, 2015. During the September 2010 VA examination the Veteran continued to endorse symptoms of irritability and anger outburst, low stress tolerance, memory problems, low stress tolerance, insomnia, headaches, tinnitus, light sensitivity and dizziness. Upon examination orientation, behavior, speech, and concentration were within normal limits. Thought processes were appropriate, judgment was unimpaired, and abstract thinking was normal. Memory was noted to be only mildly impaired due to difficulty retaining short term memories. Overall, the Veteran was noted to have objective testing of mild impairment of memory, attention, concentration, and/or executive functioning, as well as mild impairment in judgment. Social interaction was occasionally inappropriate. The Veteran was noted to be always oriented to person, time, place and situations. Motor activity and visual spatial orientation was normal. The Veteran was noted to have three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, work or family, or other close relationships. The Veteran had one or more neurobehavioral effects that occasionally interfered with work and/or social interaction, but did not preclude them. The Veteran was able to communicate in and comprehend spoken and written language, and his consciousness was normal. See September 2010 VA examination report. A VA examination was provided in January 2014 during which the Veteran endorsed current TBI symptoms of dizziness; headaches three to four times weekly that at times required him to lie down but were most often relieved by Advil; sensitivity to light; nausea; and sensitivity to sound. The VA examiner noted objective evidence of moderate impairment of memory, attention, concentration, or executive functioning with moderate impairment, mildly impaired judgment, and social interaction that was occasionally inappropriate. The Veteran was always oriented to person time and place; motor activity was normal, and visual spatial orientation was noted to be mildly impaired. The VA examiner noted three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, and relationships. The VA examiner noted one or more neurobehavioral effects that frequently interfere with workplace and or social interactions. Communication was noted to be occasionally impaired, and consciousness was normal. See January 2014 VA examination report. During the rating period on appeal prior to March 10, 2015, the weight of the evidence indicates that manifestations of TBI are more appropriately rated under other separate diagnostic codes, or resulted in a severity of “1” or a lower disability rating under DC 8045, than that obtained when rated under a separate Diagnostic Code. Turning to the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table, the Board notes that each facet was addressed in the September 2010 and January 2014 VA TBI examinations. The first facet is memory, attention, concentration, and executive functions. The Board has considered whether the Veteran would be entitled to a higher disability rating for complaints of deficits in memory, attention, and concentration under Diagnostic Code 8045. A level of severity of “2” has been assigned for the memory, attention, concentration, and executive functions facet. As discussed above the longitudinal history of the TBI residuals reflects that cognitive deficits related to memory, concentration, and attention have generally resolved and were no more than mild deficits per the multiple neuropsychological evaluations conducted prior to 2012. Specifically, neuropsychological assessment conducted in July 2004 showed average to above average intellectual functioning, to include average to high average memory functioning, processing speed, and cognitive flexibility, and only mild variability in concentration. In contrast, neuropsychological evaluations from January 2006 and March 2009 show additional improvement in memory, attention, concentration, and executive functioning compared to 2004, as problem solving skills remained intact, attention and concentration was in the average to superior range, and learning memory remained average with only minor deficits in short term memory. Additionally, the Veteran endorsed working up to 10-hours a day doing freelance web design prior to March 2015, which further speaks to his functional abilities in this facet. See July 2010 private treatment record; January 2006, March 2009 SSA records. During a September 2010 VA examination, the assessment was mild impairment for short term memory, attention and concentration upon mental status examination, but was otherwise ability to set goals, plan and self-monitor, problem solve more than half the time, and be flexible in change half the time. See September 2010 VA examination. VA treatment records during the relevant rating period, including neuropsychological evaluation in 2012, also show that that the Veteran’s cognitive complaints regarding significant memory, attention, and concentration deficits were inconsistent with neuropsychological testing up to that point which showed only mild or negligible deficits. See January 2012, June 2012, July 2012 VA treatment records. The VA examiner in January 2014 assessed objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. However, it is not clear whether the VA examiner reviewed the evidence of record, as the indication of moderate impairment in this facet appears to be based on the reported history of the initial injury as opposed to the current level of functioning. Furthermore, the level of impairment in memory, attention, concentration and executive functioning indicated in the January 2014 VA examination report is inconsistent with and outweighed by the longitudinal lay and medical evidence of record which indicated no more than mild impairment noted in several neuropsychological evaluations in the years prior to the 2014 VA examination, consistent with a level of severity of “2” for the memory, attention, concentration, and executive functions facet. For the reasons discussed above, the weight of the evidence suggest that a level “3,” consistent with moderate impairment, is not indicated in this facet. Moreover, as a severity level of “2” denotes a 40 percent rating under the TBI rating criteria (DC 8045), and the Veteran’s is currently assigned a separate 70 percent rating for the service-connected psychiatric disorder (PTSD, MDD, and anxiety), which has been service-connected as a residual of the in-service TBI since service separation and contemplates symptoms such as impaired judgment, thinking, difficulty in adapting to stressful circumstances, difficulty understanding complex commands impairment; impairment of short and long term memory (e.g., retention of only highly learned information, and forgetting to complete tasks), mild memory loss (e.g., forgetting names, directions, and recent events); and impaired abstract thinking, it is more beneficial to rate symptoms of mild memory, attention, and concentration deficits as a part of the service-connected psychiatric disability, which is assigned a higher 70 percent rating. Symptoms of mildly impaired memory and concentration may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). A level of severity of “1” has been assigned for the judgment facet, indicating that the examiners found evidence of normal judgment. A higher level of severity of “2” is not warranted unless an examiner finds evidence of moderately impaired judgment, including symptoms such as impairment 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. As a severity of “1” denotes a 10 percent disability rating under the TBI rating criteria, and the Veteran is currently service connected for a psychiatric disability, it is more favorable for judgment to be considered as a part of the 70 percent rating assigned for the service-connected psychiatric disorder, which contemplates impaired judgment, impaired impulse control, and difficulties adapting to stressful circumstances rather than the TBI rating criteria. Symptoms of mildly impaired judgment may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. A level of severity of “1” has been assigned for the social interaction facet, indicating that social interaction is occasionally inappropriate. A higher level of severity of “2” is not warranted unless social interaction is frequently inappropriate. As a severity of “1” denotes a 10 percent disability rating under the TBI rating criteria, and the Veteran is currently service connected for a psychiatric disability, it is more favorable for social interactions to be considered as a part of the 70 percent rating assigned for the service-connected psychiatric disability, which contemplates inability and/or difficulties establishing and maintaining effective work and social relationships, rather than the TBI rating criteria. Symptoms of occasionally inappropriate social interaction may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. A level of severity of “0” has been assigned for the orientation facet, indicating that the examiner assessed that the Veteran is always oriented to person, time, place, and situation. A higher level of severity of “1” is not warranted unless an examiner finds evidence such as occasional disorientation to one of the four aspects (person, time, place, situation) of orientation. A level of severity of “0” has been assigned for the motor activity (with intact motor and sensory system) facet, indicating normal motor activity. A higher level of severity of “1” is not warranted unless an examiner finds that motor activity is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities). A level of severity of “1” has been assigned for the visual spatial orientation facet, indicating that the examiner assessed visual spatial orientation to be mildly impaired, including occasionally getting lost in unfamiliar surroundings and having difficulty reading maps or following directions, but otherwise, having the ability to use assistive devices, such as GPS (global positioning system). Although the September 2010 VA examiner assessed normal visual spatial orientation, in light of reports of occasionally getting loss in familiar surroundings, but otherwise independence in driving and the ability to effectively use GPS during VA outpatient encounters as well as the January 2014 VA examination, the Board has resolved reasonable doubt in the Veteran’s favor in finding that a severity level of “1” is indicated in this facet. A higher level of severity of “2” is not warranted unless an examiner finds evidence of moderate impairment, including usually getting lost in unfamiliar surroundings, having difficulty reading maps or following directions, and having difficulty using assistive devices such as GPS. A level of severity of “1” has been assigned for the subjective symptoms facet, indicating three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. The VA examiners have noted subjective symptoms of headaches, nausea, insomnia, tinnitus, sensitivity to light and noise, and dizziness. The VA examiner in January 2014 assessed that the subjective symptoms moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships. However, a review of the evidence shows that the Veteran has reported a history of sensitivity to light and noise, which he is able to manage with headphones and sunglasses as needed. As for headaches the record indicates that headaches sometimes required him to lay down, but most often were easily manageable with Advil. The Veteran also reported that he retained the ability to do chores with headaches despite some limited focus during headaches. Moreover, the VA examiner in February 2014 assessed no evidence of characteristic prostrating attacks of migraine/non-migraine head pain, as a such a compensable rating is not indicated for headaches under 38 C.F.R. § 4.124a, DC 8100 and it is more beneficial to rate headaches under the subjective symptoms facet. The Veteran reported that subjective symptoms of nausea were managed with ginger ale. As for complaints of dizziness, no vestibular disorder has been diagnosed and subjective complaints of dizziness were noted to be of only minor inconvenience. Additionally, the VA endorsed working on his website development business, attending retreats, and engaging in various extracurricular activities despite the history of subjective complaints See, e.g., March 2009 SSA record; October 2009, July 2010, January 2011, February 2011 private treatment records; August 2009 VA treatment records, July 2012; September 2010, January 2014, February 2014, March 2014 VA examination reports. With regard to subjective symptoms of insomnia (impairment of sleep) and tinnitus, the Veteran is currently service connected and rated 70 percent for a psychiatric disability, which contemplates symptoms of chronic sleep impairment. Additionally, the Veteran is separately service connected for tinnitus (e.g., ringing in the ears), which is rated 10 percent. As such, subjective symptoms of insomnia and tinnitus may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. As for the remaining subjective symptoms of sensitivity to light and noise, headaches, and dizziness the totality of the lay and medical evidence prior to March 10, 2015 suggests that subjective symptoms have manifested as no more than a level of severity of “1,” indicating three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or relationships, as evidence prior to March 2015 suggests no more than mild impairment from these subjective symptoms, but that the Veteran has generally been able to engage in activities of daily living and various extracurricular activities without mention of significant deficits related to these subjective symptoms. A higher level of severity of “2” is not warranted unless an there is evidence of three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships. A level of severity of “2” has been assigned for the neurobehavioral effects facet, indicating one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A higher level of severity of “3” is not warranted unless an examiner finds one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days. A severity of “2” denotes a 40 percent disability rating under the TBI rating criteria. As the Veteran is currently service connected and assigned a 70 percent rating for a psychiatric disability, which also contemplates neurobehavioral effects in workplace and social interaction, neurobehavioral effects cannot support a higher or separate rating under the TBI rating criteria as rating such symptoms separately under Diagnostic Code 8045 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. A level of severity of “0” has been assigned for the communication facet, indicating that the examiner found evidence that the Veteran is able to communicate by spoken and written language (expressive communication), and comprehend spoken and written language. A higher level of severity of “1” is not warranted unless an examiner finds comprehension or expression, or both, of either spoken language or written language that is only occasionally impaired, and that the veteran can communicate complex ideas. While the January 2014 VA examiner noted comprehension and/or expression of spoken and/or written language was occasionally impaired, this finding is inconsistent with and outweighed by other evidence of record. Specifically, treatment notes prior to March 2015 reflect intact expressive and receptive language skills, normal speech, and neat handwriting, with no apparent deficits in communication indicated. See March 2009 SSA record; January 2011, February 2011 private treatment records; July 2009, January 2012 VA treatment records, September 2008 VA examination report. Moreover, symptoms of speech/communication are also contemplated by the 70 percent rating assigned for the service-connected psychiatric disability, so may not be the basis of a separate rating for TBI. See 38 C.F.R. § 4.14. Finally, for the rating period on appeal from November 7, 2012 to March 10, 2015, the evidence does not indicate that the Veteran experienced a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma; therefore, the evidence does not meet a total disability rating due to state of consciousness. For the rating period on appeal from November 7, 2012 to March 10, 2015, the TBI residuals have more nearly approximated a severity level of “1” or lower, to include as due to deficits in the visual spatial orientation and subjective symptoms facets that have not been contemplated and rated under a separate applicable diagnostic code, so warrants a separate 10 percent rating for TBI. 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8045. 3. Reduction of TBI residuals from 10 to 0 percent from March 10, 2015 4. Rating in excess of 10 percent for TBI residuals from March 10, 2015 In March 2015, the RO reduced the 10 percent rating for the service-connected TBI disability to 10 percent effective from March 10, 2015. Because the rating reduction did not affect the overall (i.e., combined) disability rating, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91; Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). A veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. Under the rating schedule, TBI is rated under DC 8045. 38 C.F.R. § 4.124a. Prior to the March 10, 2015 rating reduction, TBI residuals (other than psychiatric residuals) were assigned a 10 percent rating based on TBI residuals that approximated a severity level of “1” or lower due to residuals that have not been contemplated and rated under a separate applicable diagnostic code. Prior to the March 10, 2015 rating reduction, post-service treatment records and 2010 and 2014 VA examination reports revealed evidence of mildly impaired visual spatial orientation as well as three or more subjective symptoms (i.e., headaches, dizziness, and sensitivity to noise and sound) that mildly interfered with work, instrumental activities of daily living, and relationships, which were indicative of a level “1” of severity. The RO reduced TBI residuals from 10 percent to 0 percent based on the March 2015 VA examination report, which indicated a level of “0” in all facets of cognitive and other impairments of TBI. However, a review of the March 10, 2015 VA examination report shows that no in person examination was actually conducted to assess the current level of severity of any TBI residuals at that time. Because the RO based reduction upon a March 2015 VA examination report that did not include examination of the Veteran to assess the current severity of TBI residuals, and the evidence prior to the March 2015 VA examination report did not otherwise reflect improvement in the TBI residuals, the Board has resolved reasonable doubt in the Veteran’s favor and finds that the reduction of the 10 percent rating to 0 percent for the TBI residuals, effective March 10, 2015, was not proper; therefore, restoration of the 10 percent rating, effective March 10, 2015, is warranted. 38 C.F.R. § 3.344(a). After a review of all the lay and medical evidence, the Board finds that a rating in excess of 10 percent for TBI residuals (other than psychiatric residuals), is not approximated for the rating period from March 10, 2015. VA treatment records are silent for symptoms or treatment of any deficits in visual spatial orientation, as well as subjective symptoms of TBI that were previously reported, including headaches, nausea, dizziness, and sensitivity to light and sound. A June 2015 treatment note shows that the Veteran specifically denied problems with headaches or other neurological concerns at that time; however, the Veteran did endorse continued problems with headaches and sensitivity to light during September 2016 and February 2020 VA examinations. A September 2015 treatment note reflects that the Veteran’s primary complaint remained problems with mood lability, irritability and anger outburst, which he reportedly well managed with marijuana. Otherwise, it was noted that the Veteran continued to drive and manage his own transportation, tend to chores around his house and property, track his own appointments with mental health services, uses aids effectively such as his phone or reminders, and required no prompt for or physical assistance with activities of daily living. The Veteran reported that he was independent in mobility, eating, grooming and personal hygiene, dressing, toileting, and bathing. The Veteran reported that he grew and cultivated marijuana on his own property and was working to become a legal marijuana producer, to include hiring someone to manage his marijuana and researching benefits of marijuana use. He reported multiple activities including gardening; caring for chickens; growing, harvesting and selling hay on his property; participating in a weekly radio blog; and attending annual TBI retreats where he offered seminars and workshops. The Veteran endorsed some memory problems, but it was noted that the Veteran’s numerous neuropsychological evaluations showed good memory without objective cognitive impairment in any areas tested. See September 2015 VA treatment record. VA TBI examinations were provided in March 2015 and February 2020, both of which were conducted by neurologists. An additional TBI examination was provided in September 2016, but was not conducted by and examiner with a noted specialty in evaluating TBI. Nevertheless, the Board has considered all of the evidence, lay and medical, pertinent to the increase rating period from March 10, 2015. As it relates to the facets of memory attention, concentration and executive functions; judgment; social interaction; and neurobehavioral effects, the Veteran continues to endorse problems with memory and concentration, impaired judgment, emotional lability, anger, irritability and behavioral impulsiveness. However, the VA examiners have attributed these symptoms to the service-connected psychiatric disorder. Moreover, no examiner has indicated that any of these facets result in more than a level of severity of “2.” A severity level of “2” denotes a 40 percent rating under the TBI rating criteria (DC 8045). As VA examiners have attributed these symptoms to the service-connected psychiatric disorder, which is currently assigned a separate 70 percent rating and contemplates symptoms such as impaired judgment, thinking, difficulty in adapting to stressful circumstances, difficulty understanding complex commands impairment, impairment of short and long term memory (e.g., retention of only highly learned information, and forgetting to complete tasks), mild memory loss (e.g., forgetting names, directions, and recent events), and impaired abstract thinking, disturbance of mood and motivation, etc., it is more beneficial to rate symptoms of memory, attention, and concentration deficits as a part of the service-connected psychiatric disability, which is assigned a higher 70 percent rating. Subjective symptoms of deficits in memory loss, concentration, judgement, social interaction, and neurobehavioral effects may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional A level of severity of “0” has been assigned for the motor activity (with intact motor and sensory system) facet, indicating normal motor activity. A higher level of severity of “1” is not warranted unless an examiner finds that motor activity is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities). A level of severity of “1” has been assigned for the subjective symptoms facet, indicating that subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. A higher level of severity of “2” is not warranted unless an examiner finds evidence of three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships. A review of the record reflects that the Veteran has continued to endorse subjective symptoms of insomnia, sensitivity to light, and headaches. The September 2016 VA examination report indicates that the Veteran endorsed subjective symptoms of light sensitivity, insomnia, and headaches that occurred one to four time a week, which he managed with marijuana and rest as needed. Treatment records are otherwise silent for symptoms, diagnosis, or treatment of headaches or light sensitivity during the relevant rating period. Notably the Veteran specifically denied problems with headaches during a June 2015 encounter. To the extent that the Veteran continues to have headaches and light sensitivity, the Board has resolved reasonable doubt in the Veteran’s favor in finding that these subjective complaints, primarily headaches which have been present since the in-service TBI, mildly impact work, instrumental activities of daily living, or relationships. Given silence in the record as to complaints or treatment for these conditions, as well as the Veteran’s lay reports of independence in activities of daily living and engagement in various activities despite such symptoms (see September 2015 VA treatment records) a level of severity of “2” is not indicated for subjective symptoms. As for the subjective symptom of insomnia, this symptom is already contemplated and rated as a part of the service-connected psychiatric disorder, which contemplates chronic sleep impairment, so may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. A level of severity of “0” has been assigned for the communication facet, indicating that the examiner found evidence that the Veteran is able to communicate by spoken and written language (expressive communication), and comprehend spoken and written language. A higher level of severity of “1” is not warranted unless an examiner finds comprehension or expression, or both, of either spoken language or written language that is only occasionally impaired, and that the veteran can communicate complex ideas. Finally, for the entire period on appeal from March 10, 2015, the evidence does not indicate that the Veteran experienced a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma; therefore, the evidence does not meet a total disability rating due to state of consciousness. For the entire rating period on appeal from March 10, 2015, the evidence shows that the TBI residuals are either more appropriately rated under separate diagnostic codes, or consideration under the various facets of the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table have resulted in a severity of “1” or a lower disability rating than that obtained when rated under a separate Diagnostic Code. As such, the preponderance of the evidence is against a rating in excess of 10 percent for TBI residuals under Diagnostic Code 8045. 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8045. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.