Citation Nr: 21000989 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-09 912 DATE: January 6, 2021 ORDER Entitlement to service connection for a disability manifested by dizzy spells is denied. Entitlement to service connection for a low back disability is granted. From November 5, 2009, entitlement to a separate, noncompensable disability rating for residuals of a traumatic brain injury (TBI) is granted. Beginning November 5, 2009, but prior to October 13, 2013, entitlement to a disability evaluation of 30 percent, but no higher, for migraine headaches with dizziness associated with a TBI is granted. Beginning October 13, 2013, entitlement to a disability evaluation of 50 percent, but no higher, for migraine headaches with dizziness associated with a TBI is granted. FINDINGS OF FACT 1. The Veteran’s dizzy spells were a manifestation of his service-connected migraine headaches and not a separate, distinct disability. 2. Resolving all reasonable doubt in the Veteran’s favor, his low back disability was etiologically related to his service. 3. The Veteran did not show a compensable severity for any facet for subjective symptoms of a TBI throughout the appeal period. 4. Prior to October 16, 2013, the Veteran’s headaches were characterized by characteristic prostrating attacks occurring on average once a month over the last several months. 5. Beginning October 16, 2013, the Veteran’s headaches were characterized by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disability manifested by dizzy spells have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 3. From November 5, 2009, the criteria for a noncompensable disability evaluation for TBI have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8045. 4. Prior to October 16, 2013, the criteria for entitlement to a disability evaluation of 30 percent, but no higher, for migraine headaches with dizziness associated with a TBI have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.124a, Diagnostic Code 8100. 5. From October 16, 2013, the criteria for entitlement to a disability evaluation of 50 percent, but no higher, for migraine headaches with dizziness associated with a TBI have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1974 to March 1976. Unfortunately, in November 2017, the Veteran died. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and December 2013 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). In February 2017, the Veteran testified before the undersigned at a hearing in Houston, Texas. A transcript of his testimony has been associated with the claims file. When this matter was last before the Board, the Board reopened claims for a low back disability and dizzy spells. Additionally, the Board remanded his claims for an increased rating for migraine headaches, service connection for a low back disability, and service connection for dizzy spells so that new VA examinations could be procured. The Board also remanded claims to reopen previously denied claims for service connection for a bilateral knee disability and hypertension so that a statement of the case (SOC) could be issued pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Last, the Board referred various claims that a November 1976 rating decision that denied service connection for a low back disability, headaches, and dizzy spells should be revised based on the presence of clear and unmistakable error (CUE) so the RO could adjudicate these claims in the first instance. Because the Veteran passed away before the RO could obtain new VA examinations with respect to his claims, the RO instead obtained VA medical opinions with respect to the etiology of his low back disability and dizzy spells. Subsequently, the RO issued a supplemental statement of the case (SSOC) that addressed these claims in September 2020. These matters now return to the Board. Because there has been substantial compliance with the Board’s prior remand directives with respect to these claims, no additional remand is warranted. See D’Aries v. Peake, 22 Vet. App. 97 (2008). As a threshold matter, however, the Board notes that the CUE claims with respect to the November 1976 rating decision and the claims to reopen previously denied claims for a bilateral knee disability and hypertension are not currently before the Board. With respect to the claims to reopen the claims for a bilateral knee disability and hypertension, the RO issued an SOC pursuant to Manlincon in September 2020. Following the issuance of the September 2020 SOC, the RO notified the appellant of the decision in a September 2020 letter. The notification letter also informed her that to perfect an appeal of the SOC, she had to file a formal appeal to the Board using the enclosed VA Form 9 within 60 days of the date of the notification letter. To date, however, the 60-day appeal period has expired, and the appellant has not perfected an appeal. As such, the claims to reopen the claims for a bilateral knee disability and for hypertension have not been perfected by the filing of a timely substantive appeal and the issues are not before the Board. Turning to the CUE claims, the Board notes that the RO issued a September 2020 rating decision that addressed whether revision of the November 1976 rating decision that denied service connection for headaches, dizzy spells, and a low back disability was warranted based on CUE. Following the issuance of the September 2020 rating decision, the RO notified the appellant of this decision in a September 2020 letter. The notification letter advised her that, if she disagreed with the decision, that she had one year from the date of the notification letter to select a review option and file the appropriate form seeking further review. To date, the appellant has not submitted any application seeking further review of the September 2020 rating decision, including VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Therefore, the CUE claims with respect to the November 1976 rating decision are not currently before the Board. However, the one-year period for submitting such an application has not yet expired. As such, the appellant is advised that, if she disagrees with any of the determinations made in the September 2020 rating decision, she has until September 17, 2021, to select a review option and submit the proper application for review. More specifically, if she wishes to appeal the CUE claims that were adjudicated in the September 2020 rating decision directly to the Board, she must submit a VA Form 10182 within that timeframe. The Board will now turn its analysis to the issues over which it currently has jurisdiction: the claims for service connection for a low back disability and dizzy spells, as well as the claim for a higher disability rating for migraine headaches. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Dizzy spells In August 2020, the RO obtained a VA medical opinion with respect to the Veteran’s dizzy spells. The VA examiner stated that a review of his service treatment records and other medical records did not reveal any diagnosis for dizzy spells. Although he was seen with subjective complaints of dizziness following his discharge from service, there was no objective evidence of a disability. The examiner also stated that he did not have a diagnosis of a TBI. Ultimately, the examiner stated, it was less likely than not that his dizziness had been incurred in or caused by his military service. The Board notes that the VA examiner’s statement that the Veteran did not have a TBI is at odds with the evidence of record, which shows that he was granted service connection for post-traumatic migraine headaches in connection with a TBI in a June 2011 rating decision. As such, this aspect of the examiner’s opinion is entitled to no probative weight. See Reonal v. Brown, 5 Vet. App. 548 (1993). However, other aspects of the examiner’s opinion are supported by the other evidence of record. To that end, neither the Veteran’s private treatment records nor VA treatment records contain any formal diagnosis relating to his dizzy spells. There can be no valid claim for service connection where there is no competent evidence of a disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, his records also reflect that he suffered from service-connected migraines and that his feelings of dizziness were a consequence of his migraine headaches. See, e.g., October 2013 VA Headaches Examination Report; June 2011 VA TBI VA Examination Report. Moreover, the Veteran frequently described his dizzy spells in the context of his service-connected headaches. See October 2009 VA 21-4138 (indicating he developed severe headaches and dizziness during service). Indeed, his claim for dizzy spells was later recharacterized as a claim for TBI residuals, which was granted in the June 2011 rating decision. Ultimately, the impact of his dizzy spells on his economic inadaptability is addressed in further detail in the increased rating portion of the decision. Accordingly, his reports of symptoms of dizzy spells in connection with his service-connected migraines do not provide a basis to grant service connection for another disability that is manifested by dizzy spells. Stated differently, they are a manifestation of an already-service-connected disability, and service connection must thus be denied. 2. Low back The Veteran also claimed entitlement to service connection for a low back disability. At his February 2017 hearing, for instance, he testified that he was being treated for chronic low back pain, which had its onset in 1975. He indicated that he recalled hurting his back during service on two separate occasions. First, he reported that he went to the infirmary after pulling a muscle in his back. Second, he testified that he hurt his back again during a military vehicle exercise. He also testified that shortly after he was discharged in 1976, he requested medical assistance for his low back problems, which resulted in being hospitalized at Doctors Hospital in Conroe, Texas. The appellant, who also testified at the hearing, stated that her husband began having back problems after service but not before. Turning to the first element of service connection, his post-service treatment records reflect a diagnosis of mechanical back pain, as well as degenerative disc disease. As such, the first criterion of the test for service connection has been satisfied. Additionally, the second element of the service connection test, an in-service occurrence, has been met. To that end, the Board finds the Veteran was competent to describe symptoms such as back pain and finds that his testimony regarding pulling a muscle in his back and his subsequent back pain was highly credible. Indeed, his service treatment records from September 1975 reflect complaints of low back pain and mild difficulty on range of motion testing that was severe enough to warrant a prescription for Valium. The chief question before the Board is thus whether a preponderance of the evidence indicates that his current low back disability is related to service. The record reflects that VA obtained opinions with respect to the etiology of his low back disability in November 2009 VA examination report, as well as a January 2020 VA medical opinion from the same November 2009 VA examiner. In the November 2009 VA examination report, the VA examiner opined that his low back disability was less likely as not related to his service. To that end, the VA examiner stated that his service treatment records only reflected a single episode of subjective back pain and that there was “no indication” that he ever sustained any injury to his back during his military service. He also stated that there was no indication he had problems with his back problems until around 1979, when he was working for an airline, and that there was “a possibility” that he could have hurt his back doing this job. In the January 2020 addendum opinion, the examiner stated that despite having reviewed additional records, his opinion “remains unchanged.” Although the November 2009 VA examiner was certainly competent to offer an opinion with respect to the etiology of the Veteran’s low back disability, the Board finds that his opinions are entitled to little, if any, probative weight. To that end, the medical opinion in the November 2009 VA examination report does not consider all relevant evidence of record, such as the Veteran and appellant’s lay statements regarding the onset of his low back disability. Such an opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the January 2020 addendum opinion that indicated the VA examiner had not changed his opinion was conclusory. Indeed, although the VA examiner stated that he had reviewed records, he did not indicate why his opinion remained unchanged or cite to evidence in the record to support his opinion. As such, the January 2020 VA opinion is inadequate as well. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Overall, there are no probative medical opinions addressing the etiology of the Veteran’s low back disability. However, medical evidence is not categorically required to satisfy the nexus element of the service connection framework. See Davidson v. Shinseki, 581 F.3d 1212 (Fed. Cir. 2009). In this instance, the Board finds that the Veteran gave credible testimony and provided several credible lay statements regarding the onset and continuity of his low back pain. He has consistently reported that his low back pain began in service and, tellingly, he filed his original claim for entitlement to service connection immediately after his discharge from service. The Board also notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant’s case. See Mariano v. Principi, 17 Vet. App. 305 (2003). In light of the foregoing, and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that his low back disability had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating As set forth above, the Veteran was initially awarded service connection for headaches that were residual to a TBI in a June 2011 rating decision. In that rating decision, the RO assigned a noncompensable rating under diagnostic code 8045, for TBI residuals. Subsequently, however, in a September 2011 rating decision, the RO switched the applicable diagnostic code from 8045 to 8100, for migraine headaches, with a noncompensable rating. Effective September 6, 2012, his disability rating was increased to 30 percent under diagnostic code 8100. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence of record indicates fluctuations in the severity of symptoms during the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Migraine Rating Criteria The Veteran’s migraines were a residual of a TBI. See June 2011 Rating Decision. During the pendency of this appeal, he was in receipt of a noncompensable rating from November 5, 2009, to September 6, 2012, and a 30 percent rating thereafter, under diagnostic code 8100. Under this diagnostic code, a 50 disability rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic instability, while a 30 percent rating is warranted for characteristic prostrating attacks occurring on average once a month over the last several months. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months, while a noncompensable rating is warranted for less frequent attacks. The rating criteria do not define "prostrating." By way of reference, "prostration" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary, 1531 (32nd ed. 2012). The rating criteria also do not define "severe economic inadaptability," but nothing in diagnostic code 8100 requires the claimant to be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Secretary has conceded that the term "productive of economic inadaptability" could be read as either "producing" or "capable of producing." Pierce, 18 Vet. App. at 445. TBI Residual Rating Criteria Additionally, as the Veteran's headaches are due to a TBI, the Board has also considered the criteria for rating TBI in determining whether the Veteran is entitled to a higher disability evaluation. Effective October 23, 2008, the protocol for evaluating TBI was revised. See 73 Fed. Reg. 54, 693 (Sept. 23, 2008). Under the revised diagnostic code 8045, effective October 23, 2008, there are three main areas of dysfunction 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2016). Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, will be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as a migraine headache, will be separately evaluated, 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. Residuals not listed in the regulations that are reported on an examination should be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and then combined under 38 C.F.R. § 4.25. Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is "total," then the overall percentage evaluation is based on the highest facet. A 70 percent evaluation is assigned if "3" is the highest level of evaluation for any facet. If the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent. A 10 percent evaluation is warranted when the highest level of evaluation for any facet is "1." Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is "0." 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, more than one evaluation based on the same manifestations shall not be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation will be assigned 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, a separate evaluation shall be assigned for each condition. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (1). 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (2). 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. 38 C.F.R. § 4.124a , Diagnostic Code 8045 Note (3). The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. 38 C.F.R. § 4.124a , Diagnostic Code 8045 Note (4). The table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired 0 May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a , Diagnostic Code 8045. Analysis Having set forth the relevant rating criteria, the Board will now review relevant lay and medical evidence from the period on appeal. The evidence of record indicates that the Veteran underwent a VA examination in June 2010 for his headaches. He reported sharp headaches that were worse on the left side characterized by a minor throbbing that would intensify. He stated that the headaches sometimes lasted a few hours before resolving, whereas other times they would last for two to three weeks. In the past six months, he reported that he had been having headaches two to three times per week, and that they had been getting progressively worse. His headaches were treated using over-the-counter medications as needed and, when required, prescription drugs. The June 2010 VA examiner noted that his headaches were not prostrating and that ordinary activity was possible during his headaches. In a subsequent June 2011 VA TBI examination, the Veteran reported that his headaches, which had their onset after an in-service head injury, had not changed over time. The initial head injury was characterized as mild and did not require hospitalization. He indicated that his headaches were left-sided and that his pain was throbbing and sharp in character with moderate-severe pain. He also reported that his headaches were associated with nausea, dizziness, blurred vision, photophobia, and phonophobia. The headaches lasted approximately one and a half hours and occurred daily. He estimated that of those headaches, 30 to 40 percent were severe headaches. The VA examiner diagnosed post-traumatic migraine headaches and indicated that the impact on his usual occupation was that he had to take short breaks from work during severe headaches, which impacted work efficiency. Additionally, there were no physical findings of autonomic nervous system impairment, gait abnormalities, imbalance or tremors, muscle atrophy or loss of muscle tone, spasticity or rigidity, fasciculations, cranial nerve dysfunction, hearing problems, endocrine dysfunction, vision problems, psychiatric manifestations, or other abnormalities on the June 2011 VA examination report. There were also no complaints of impairments of memory, attention, concentration, or executive functions. His judgment, consciousness, visual spatial orientation, and motor activity were described as normal, social interaction was routinely appropriate, and there was orientation to all spheres. Subjective symptoms were not enumerated but were described as not interfering with work, instrumental activities of daily living, or work, family, or other close relationships. “Neurobehavioral effects” was listed as one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, although no neurobehavioral effects were specifically enumerated. The VA examiner also noted he was able to communicate by spoken and written language and to comprehend written and spoken language. A March 2012 VA treatment record indicated that he had complained of almost daily headaches that were located behind his left eye and that radiated to his posterior scalp. He described the headaches as constant and throbbing, but also stated that they were relieved mildly for a few hours when he took over-the-counter medication. He also endorsed auras, nausea, photophobia, and lightheadedness. His treatment provider prescribed 40 milligrams of propanolol each day and recommended tramadol as needed for abortive use. In an October 2013 VA headaches examination, the Veteran reported that his migraines caused headaches, dizziness, and blurred vision. He described the pain as a constant, pulsating or throbbing head pain on both sides of his head that worsened with physical activity. His headaches caused symptoms such as nausea, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. He indicated that his head pain would last more than two days, with head pain typically on both sides of his head. The examiner indicated that he had prostrating attacks of headache pain more frequently than once a month, with very frequent prostrating and prolonged attacks of migraine headache pain. At his February 2017 Board hearing, the Veteran indicated that he had severe headaches that prevented him from getting out of bed without having sharp pains. He also indicated that at the time of the October 2013 VA examination, he was having headaches more than two to three times a day and that his everyday function and activities were being hindered. He also reported that the October 2013 VA examination report did not accurately reflect the severity of his symptoms and that his headaches had increased in severity since that time. As an initial matter, the Board finds that the only residual of the Veteran’s TBI that manifested during the period on appeal was the Veteran’s migraine headaches. To that end, the Board finds the June 2011 VA TBI examination report to be thorough and highly probative. Indeed, the examination report did not indicate that the Veteran’s TBI caused any cognitive impairment. Moreover, although the examination report indicated he had subjective symptoms, the examination report did not specifically enumerate them. However, the examination report suggested that his only subjective symptoms were his headaches and the symptoms they produced. Indeed, the examiner only noted that his TBI caused residual post-traumatic migraine headaches, which caused dizziness. The examiner reported no complaints of impaired memory, attention, concentration, or executive functions. The Veteran was able to communicate by and comprehend written and spoken language, and his consciousness was normal. Ultimately, there were no other pertinent physical findings, complications, conditions, signs, or symptoms of his TBI on the June 2011 VA examination, nor has the appellant argued that these were present during the period on appeal. Accordingly, the Board finds that the Veteran’s migraines are most appropriately rated under diagnostic code 8100, which rates migraine headaches, rather than diagnostic code 8045, which rates TBI residuals. However, notwithstanding that the Veteran’s only TBI residual appeared to be his headaches and their associated symptoms, he is nonetheless entitled to a separate, albeit noncompensable, rating for TBI residuals under diagnostic code 8045. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). However, as set forth above, a separate, compensable rating for TBI is not warranted, as the migraine headaches that are associated with his TBI are more appropriately rated under diagnostic code 8100. Having carefully reviewed the relevant evidence of record, the Board finds that the Veteran is entitled to a 30 disability rating from November 5, 2009, to October 16, 2013 and a 50 percent disability rating thereafter under diagnostic code 8100. Prior to October 16, 2013 Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s migraines were manifested by characteristic prostrating attacks occurring on average once a month over the last several months. The Board acknowledges that the June 2010 VA examiner did not indicate that the Veteran had prostrating headaches and that ordinary activity was possible during his headaches. However, the June 2010 VA examiner also noted that the Veteran would occasionally have headaches so severe that they warranted seeing a doctor for treatment. The Veteran estimated that this occurred once every one or two months. Additionally, at his June 2011 VA TBI examination, the Veteran reported that the severity of his headaches had not changed, but that they interfered with his work efficiency by making him unable to function optimally during severe headaches. The headaches also caused symptoms such as dizziness, nausea, blurred vision, photophobia, and phonopobia. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that these sorts of severe headaches more closely approximate prostrating headaches that occurred on average once every month over the past several months. However, the Board finds that the probative lay and medical evidence of record from this portion of the period on appeal does not suggest that a rating higher than 10 percent was warranted. To that end, although his post-service VA and private treatment records reflect occasional complaints of and treatment for migraine headache symptoms, which interfered with his work performance, they do not indicate that he suffered from prostrating attacks very frequently or that these prolonged attacks were productive of severe economic inadaptability. From October 16, 2013 From the point in the appeal period beginning on October 16, 2013, however, the Board finds that a 50 percent rating for migraine headaches is warranted. The Board acknowledges the Veteran's testimony with respect to the accuracy of the October 2013 VA examination, including his belief that his symptoms were worse than what was reflected on the examination report. Nonetheless, the Board finds that the October 2013 VA examination indicates that his disability picture more closely approximated the 50 percent disability rating criteria. To that end, the October 2013 VA examination report reflects that his migraines caused dizziness, blurred vision, and constant throbbing head pain, as well as nausea, sensitivity to light, sensitivity to sound, and changes in his vision that could last for more than two days. The VA examiner also noted that he had prostrating attacks of headache pain more frequently than once a month. Although the October 2013 VA examiner indicated that the Veteran’s headaches did not cause any functional impact, the Board finds that this specific opinion is not supported by the record. Indeed, as the Veteran testified at his hearing, his severe headaches would often force him to go to bed with the lights off for several hours and “hinder” his “everyday function and activity” as a result. Resolving all reasonable doubt in the Veteran’s favor, the evidence suggests that the Veteran suffered from severe economic inadaptability as a result of these migraine attacks beginning at this point in the appeal period. As such, the Board finds that this evidence supports a finding that the Veteran’s migraine attacks were very frequent, completely prostrating, and productive of severe economic incapability. Since the maximum 50 percent disability rating is assigned for this portion of the claim period, however, a higher schedular disability rating cannot be assigned under this diagnostic code. Additionally, the Board has reviewed the rating schedule and finds that no other diagnostic code provisions are appropriate. Specifically, the Board notes that, as previously discussed, the Veteran's service-connected headache disability is the result of a TBI, but that he is not entitled to a compensable rating under diagnostic code 8045. T. Reynolds Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate Counsel 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.