Citation Nr: 21002951 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 11-21 082A DATE: January 19, 2021 ORDER 1. Entitlement to increases in the (10 percent prior to February 20, 2018 and 50 percent from that date) staged ratings assigned for traumatic brain injury (TBI) is denied. 2. Entitlement to a compensable rating for post-traumatic headaches is denied. REMANDED 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Migraine headaches due to TBI have not been diagnosed during the pendency of the appeal; the Veteran’s post-traumatic headaches are not shown to have been manifested by characteristic prostrating attacks. 2. Prior to February 20, 2018, the Veteran’s TBI was manifested by mild impairment of memory, attention, concentration, and executive functions; and subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other social relationships; it was not manifested by a level of impairment of “2” or higher in any facet of cognitive impairment or other residuals of TBI not otherwise specified 3. From February 20, 2018, symptoms attributable to the Veteran’s residuals of TBI are shown to have a highest level of severity of “2” for the applicable 10 facets of disablement; the Veteran’s adjustment disorder with TBI cannot be clearly separated from TBI, has been manifested by symptoms productive of occupational and social impairment no greater than reduced reliability and productivity; occupational and social impairment with deficiencies in most areas is not shown. CONCLUSIONS OF LAW 1. Increases in the 10 percent prior to February 20, 2018 and 50 percent from that date ratings assigned for TBI are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4,3, 4.124a, Diagnostic Codes (Codes) 8045, 9440. 2. A separate compensable rating for post-traumatic headaches is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.124a, Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1956 to September 1958. These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2011 and February 2015 rating decisions. In October 2013, a Travel Board hearing was held before the undersigned, a transcript is in the record. In December 2013, the Board remanded the claims for additional development. An interim (February 2015) rating decision increased the rating for TBI to 10 percent, effective September 28, 2010. In August 2015 the Board remanded the claims for additional development. In March 2018, the Board vacated an October 2017 Board decision that denied a rating in excess of 10 percent for the TBI and entitlement to a TDIU rating. In April 2018 and December 2019, the Board remanded the claims for additional development. A statement of the case (SOC) addressing the rating assigned for the headaches was issued August 2020. VA received a (timely) VA Form 9 on the matter and the Veteran did not request a Board hearing. Accordingly, the matter of entitlement to a separate compensable rating for post-traumatic headaches is before the Board. An August 2020 rating decision increased (from 10 to 50 percent) the rating for adjustment disorder with mixed anxiety and depressed mood with TBI, effective February 20, 2018. The record reflects that the Veteran received a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. A further review of the record found he does not have a pending hearing request. A hearing before the undersigned was held in October 2013. [An August 2020 Board decision awarded a staged increased (to 30 percent) rating for a separately appealed cervical spine disability, effective January 2, 2020, and remanded claims of entitlement to a separate rating for bilateral upper extremity radiculopathy disabilities as part and parcel of the cervical spine rating claim. Those claims are separately docketed and will not be addressed herein.] The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal is from the initial rating decision assigned with an award of service connection, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Under Code 8045 there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Headaches due to trauma are rated under the criteria in 38 C.F.R. § 4.12A, Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified”. Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified”. However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another code, such as migraine headache, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130 (Schedule of ratings - mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified”. Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed in 38 C.F.R. § 4.124a, Code 8045 that are reported on an examination, are to be evaluated under the most appropriate code. Each condition is to be evaluated separately (as long as the same signs and symptoms are not used to support more than one evaluation), and the evaluations for each separately rated condition are combined under 38 C.F.R. § 4.25. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total”. However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total”, since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total”, the overall percentage evaluation is assigned 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Notes following include: (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. (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. (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. (4): The terms “mild”, “moderate”, and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. On December 2010 VA examination, the Veteran reported having multiple episodes of total vision loss for several seconds with no tongue biting or urinary incontinence. He reported intermittent headaches described as annoying and not severe, located in the frontal region, occurring once to four times per week, and lasting for several hours with no vomiting. He reported that the headaches had continued over the years and had not changed in presentation, and there were no associated neurological abnormalities. He took over-the-counter medication which alleviated the headaches. He reported several episodes of sleep disturbance when over the last several years, his wife had awakened him because he was “boxing with somebody”. He reported feeling depressed for the last several years because he was not working. There was no history of dizziness, vertigo, seizures, balance or coordination problems, autonomic dysfunction, numbness, paresthesias or other sensory changes, weakness or paralysis, mobility or ambulatory problems, fatigue, malaise, memory impairment, other cognitive symptoms, neurobehavioral change, bowel or bladder problems, erectile dysfunction, hearing loss or tinnitus, speech or swallowing difficulty, decreased sense of taste or smell, endocrine dysfunction, or cranial nerve dysfunction. On physical examination, detailed reflex testing, sensory testing, and detailed motor testing were normal. There was no cognitive impairment. A January 1985 CAT scan of the brain was noted to have been normal. A July 2011 VA treatment record notes the Veteran reported chronic headaches described as annoying, intermittent, occurring every 2 to 3 days, and lasting from one hour to 2 to 3 days. He reported that the symptoms begin with watery eyes and progress to headaches with a pain level of 5 to 6; he took Tylenol with some relief. A January 2012 private treatment record notes the Veteran’s report of having headaches every few days, 2 to 3/10 in severity. He reported a REM behavior disorder of sleep in which he talked about his dreams and flailed his limbs. The impressions included chronic very mild frequent headaches after a concussion in service many years ago, and REM behavior disorder of sleep with no evidence of Parkinson’s disease. Clonazepam was prescribed, and totally eliminated the REM behavior disorder of sleep. On October 2012 VA TBI examination, the Veteran reported intermittent headaches since service. He had no complaints of impairment of memory, attention, concentration, or executive functions. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He reported subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships, including mild or occasional headaches, and mild anxiety. He had no neurobehavioral effects. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. No neuropsychological testing was performed. The examiner noted that on the day of the trauma (May 1957) while being evaluated, the Veteran had a petit mal seizure, but reported that he had been having them for about 4 months prior to the incident without any history of previous trauma; it was later noted that these episodes were more of a functional nature and did not require further investigation. On October 2012 VA headaches examination, the diagnoses included migraine including migraine variants, and posttraumatic headaches. The Veteran reported having chronic headaches since the trauma in service, described as an intermittent generalized dull headache, lasting between 5 minutes and several hours, decreased with over-the-counter medication, occurring at least several times per week with no associated factors, not increased with activity, and with no associated sensory changes. He reported that the previous year he had also developed a second type of headache located in the right temporal region, for which pain medication was prescribed. The new headaches were described as sharp, lasting several hours to all day, not affected by activity, and occurring daily. Symptoms included pain on both sides of the head but did not include nausea, vomiting, sensitivity to light or sound, changes in vision, or sensory changes. The typical head pain lasted for less than 1 day. He reported characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month, and very frequent prostrating and prolonged attacks of migraine headache pain. He did not report prostrating attacks of non-migraine headache pain, or very frequent prostrating and prolonged attacks of non-migraine headache pain. At the October 2013 Board hearing, the Veteran testified that he has mild to moderate headaches daily or every other day, and severe headaches two to three times a month. He testified that his headaches have not changed over the years. He testified that he experiences irritability and lack of concentration. His wife testified that when he has a headache, he has to lay down on the sofa. On January 2015 VA TBI examination, the Veteran reported that, since the previous TBI evaluation, he no longer had the second described type of headache; he only had the persistent headaches since the injury in service. He had no complaints of impairment of memory, attention, concentration, or executive functions. He had normal judgment. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He had three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. The subjective symptoms included headaches described as limiting his activities significantly because of the pain, and anxiety. There were no neurobehavioral effects. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. Neuropsychological testing was not performed. He reported that an MRI at a non-VA facility was normal. On January 2015 VA headaches examination, the Veteran reported no change in the pattern of his posttraumatic headaches since 1958. He reported having headaches multiple times per day, from twice to seven times per week, that interfered with activities. His medications included tramadol and hydrocodone/acetaminophen. Symptoms included headache pain localized to one side of the head and numbness in the face with headaches. The typical head pain had duration of less than one day and was located on the right side of the head. He did not have characteristic prostrating attacks of migraine or non-migraine headache pain. In a July 2015 statement, the Veteran reported having headaches multiple times a day, lasting for minutes up to half a day, that require him to sit for half an hour to an hour. A November 2015 VA treatment record notes the Veteran reported having headaches daily or every other day. The headaches typically began in the right frontotemporal region and verged into the parietal region and the retro-orbital space. He described the pain as dull and denied a specific throbbing component. He reported that the headaches typically last minutes to hours. He reported photophobia with the headaches but not phonophobia. There was no change in the headache on exposure to strong odors, and he denied olfactory triggers. He did not experience nausea or vomiting with the headaches. He denied symptoms associated with the headaches consistent with scotoma or any focal neurological features. He took over- the-counter pain medication. The impression was headaches consistent with transformed migraine/chronic daily headaches. On June 2016 VA TBI examination, the Veteran reported that he has had chronic annoying headaches since a head injury in service. He reported that the longest he has ever gone without a headache is four days. He reported symptoms including frequent dull headaches; at times the pain is fleeting, at other times it lasts for hours, and sometimes it lasts all day. He reported that when the headache is long lasting, he is irritable. He complained of tinnitus and reported that blurred vision began a couple of months earlier. He took hydrocodone for pain and ibuprofen as needed. He reported mild memory loss (such as difficulty following a conversation, recalling conversation, remembering names of new acquaintances, finding words, and often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. He complained of impaired attention, concentration and mild memory loss; the symptoms were all subjective. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He reported subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships. He reported that chronic frequent headaches interfere with activities of daily living by making him irritable, and that his frustration tolerance was decreased, secondary to headaches. He reported having one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. he reported that a July 2013 MRI was normal. A Montreal Cognitive Assessment was conducted, and his score was 26/30 (in the normal range). The examiner noted the Veteran’s history of stable employment and his ability to maintain relationships and function adequately. The examiner noted the Veteran’s reports of mild memory loss, and attention and concentration difficulty, and indicated there is no objective evidence to substantiate those claims. On June 2016 VA headaches examination, the diagnoses included migraine including migraine variants, posttraumatic headaches, and cervicogenic headaches. The Veteran reported that his current symptoms remained the same; the headaches were annoying and occurred 3 to 6 times per day, sometimes very briefly. He took ibuprofen and hydrocodone on occasion. He denied having migraine headaches, and the examiner opined that the assessment supported his statement. Symptoms included annoying, dull pain, localized to one side of the head. He did not experience non-headache symptoms associated with headaches. The duration of typical head pain lasted less than one day, and the location was on the right side of the head. The Veteran did not have characteristic prostrating attacks of migraine headache pain, very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain, or prostrating attacks of non-migraine headache pain. The examiner noted that posttraumatic headache was diagnosed in July 2011 and migraine headache in October 2012. The examiner noted the Veteran’s report that he does not have migraine headaches or any non-headache symptoms associated with migraine headaches. The examiner noted that on 2013 neurology treatment, the opinion was that the newer-onset headache was cervicogenic in nature (based on a 2012 c-spine MRI that showed arthritic changes). On review of all of the record, history, and examination, the examiner opined that the Veteran’s chronic headaches are from the 1957 injury in service and the newer onset headaches were due to the cervical spine issues. The examiner noted the Veteran stated that the headaches do not interfere in his work and opined that his headaches do not prevent him from working. An August 2017 private treatment record notes reports of increasing headaches; his private provider referred the Veteran to a neurologist. VA received an intent to file a claim from the Veteran on February 20, 2018. In March 2018, VA received a completed VA 21-526b seeking service connection for cognitive impairments to head injury, mental health, irritability, and sleep disorder. In a corresponding statement, the Veteran reported he experiences mental health symptoms to include anxiety, depression, and memory loss. On May 2018 VA psychiatric examination, adjustment disorder with mixed anxiety and mood were diagnosed. The Veteran reported anxiety about getting a migraine, that the headaches are chronic, and that pain from headaches incapacitates him and may cause irritability and depression. The examiner opined TBI may cause memory problems, disturbances in mood, and confusion. The examiner was unable to differentiate symptoms attributable to TBI from those due to the Veteran’s psychiatric disability, noting the symptoms of the disorders and their resulting impairment overlap significantly and the examiner cannot determine their individual impact without resort to mere speculation. The Veteran reported he was married for 49 years until his wife died, and that he has a good relationship with his 3 daughters and 3 grandchildren, 2 of whom visit daily. He reported he daily has breakfast with a group of 12 friends. He reported that he has never received formal mental health treatment but does experience mental health symptoms. Psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. He denied experiencing suicidal ideation. The examiner opined that the psychiatric disorder manifests in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner opined that the Veteran’s cognitive impairment is at least as likely as not proximately due to, or the result of the TBI, noting the psychiatric disorder began subsequent to the antecedent condition (the TBI) and is the direct result of efforts to control or cope with, or a direct psychological response, to the antecedent condition. On June 2018 VA TBI examination, the Veteran reported that he has had chronic headaches since a TBI in service. He reported having hearing loss and/or tinnitus, headaches, and a mental disorder. He reported that, after the TBI, he had difficulty taking written tests, difficulty remembering names, would get in a bad mood when he had a headache (but controlled his emotions well), and had brief suicidal ideation when his wife was very ill but none lately, and that he still felt down and anxious at times with occasional panic attacks. He complained of impaired attention, concentration and mild memory loss; there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. Immediate recall was 3/5 and 4/5 with cues, and short term recall was 2/5 and 4/5 with cues. His judgment was normal. His social interaction was routinely appropriate. He was occasionally disoriented to one of the four aspects of person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He reported subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships. He reported one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. He related that he tends to be depressed and have rare panic attacks. The examiner noted the Veteran’s wife had recently died, and the depression appeared to be situational in nature. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. A 2018 MRI found small vessel ischemic changes and atrophy; the provider opined this was normal in [the Veteran’s] age group. The examiner noted the Veteran will need memory aids and needs to avoid stressful situations. She recommended that he avoid any overtime, and indicated that he will need to occasionally take time off for headaches. On June 2018 VA headaches examination, the diagnoses were tension headaches and post-traumatic headaches. The Veteran reported receiving some trigger point injections, with some benefit. He took Vicodin at times. Symptoms included annoying, dull, pain, localized to one side of the head. He did not experience non-headache symptoms. The duration of pain was less than a day, and the location was on the right side of the head. He did not have characteristic prostrating attacks of migraine headache pain, very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain, or prostrating attacks of non-migraine headache pain. The examiner opined the Veteran will need to take occasional breaks from work due to his headache condition. An April 2019 private treatment record notes the Veteran was doing well after the loss of his wife and was taking anti-anxiety medication, as needed. On July 2019 VA neck examination, the Veteran reported he had had no headaches since he received an occipital nerve block earlier that year. An October 2019 VA treatment record notes the Veteran reported his headaches had improved with the injection medication. He reported he had no headaches in the past 6 months. Additional VA and private treatment records reflect symptomatology largely similar to that shown on the examinations described above. At the outset, the Board finds based on the foregoing there has been substantial compliance with the Board’s remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008). 1. Entitlement to a rating in excess of 10 percent for TBI prior to February 20, 2018 for TBI and a compensable rating for post-traumatic headaches throughout is denied. Service connection for headaches has been established secondary to TBI. Headaches due to trauma are rated under the criteria in 38 C.F.R. § 4.12A, Code 8045. However, any residual with a distinct diagnosis, such as migraine headaches, may be evaluated under a distinct diagnostic code for such diagnosis, if that diagnostic code is based on subjective symptoms. Under the table for rating cognitive impairment and other residuals of TBI not otherwise classified, subjective symptoms warrant a 10 percent rating when there are 3 or more symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. Examples include daily mild to moderate headaches. A 30 percent rating is warranted when there are three or more subjective symptoms that moderately interfere with work. Examples include headaches requiring rest periods during most days Under Code 8100, a 0 percent rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent, (maximum schedular) rating is warranted for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a At the outset, it is noteworthy that the Veteran’s currently assigned 10 percent rating for TBI under Code 8045 is based in part on headache complaints. See February 2015 rating decision, and October 2012, January 2015, and June 2016 VA examination reports. Under guidelines in Code 8045, because the no medical provider has assigned the Veteran’s post-traumatic (TBI) headaches a clear diagnosis of migraine headaches due to TBI, they are rated under the criteria for rating for TBI under Code 8045. Post-traumatic headaches, rather than migraines, due to TBI have been diagnosed on VA examinations thorough-out the period for consideration on appeal. See October 2012, January 2015, June 2016, and June 2018 VA examination reports. While the October 2012 examiner diagnosed post-traumatic headache and migraine headaches, he opined that the migraine headaches, which have been present for a year and appeared to be prostrating, are not related to the TBI as it is new in onset as compared to the TBI that occurred 50 years ago. [Thus, if then existing, they were a separate and distinct (from the service-connected post-traumatic headaches) disability. Notably, subsequent examiners have not found a diagnosis of migraine headaches.] VA examiners have expressly found that the Veteran does not have characteristic prostrating migraine attacks due to his post-traumatic headaches (and the Veteran has denied having such attacks.] The record shows that his post-traumatic headaches, by his own reports, last less than a day. The Board finds that, considering the apparent inconsistencies in the Veteran’s descriptions of the post-traumatic headaches, whether his reports reflect he has “prostrating” attacks is a medical question that requires medical guidance. The VA examiners opined that the headaches are not prostrating, and the headaches related to his TBI are not migraine headaches. The Board defers to the providers’ medical judgment; the Veteran has not submitted a medical opinion or treatise evidence to the contrary. Considering all the signs and symptoms of the residuals of TBI, the Board finds the post-traumatic headaches are more appropriately rated under Code 8045 throughout the period on appeal and do not warrant a separate compensable rating. Accordingly, the analysis proceeds to whether prior to February 20, 2018 the Veteran had 3 or more subjective symptoms of TBI productive of more than mild cognitive impairment. The preponderance of the competent (medical) evidence is against a finding that prior to February 29, 2018 he had has more than mild cognitive impairment as a residual of TBI. While he reported some problems with memory, concentration, attention, and executive functions, there was no objective evidence on testing of impairment of memory, attention, concentration or executive functions, resulting in any functional impairment. He had not reported problems with goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, or flexibility in changing action. HIs subjective TBI residual symptoms were consistently reported on VA examinations (described above) as daily mild to moderate headaches, irritability and anxiety. As he had not reported motor or sensory dysfunction, loss of sense of smell and taste; seizures; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; or endocrine dysfunctions, additional separate ratings for residuals of TBI were not warranted. The Veteran’s TBI residuals have been assigned a 10 percent rating prior to February 20, 2018 on the basis that the greatest number assigned to any facet of TBI impairment is 1. At its most severe prior to February 20, 2018 the Veteran’s TBI disability (to include headaches) manifested in mild impairment of memory, attention, concentration, and executive functioning (but without objective evidence of impairment on testing); and subjective symptoms that mildly interfered with, but did not prevent, work or engaging in social activities. The level of severity of each of these facets warrants a 1, under the table for evaluating residuals of TBI. 38 C.F.R. § 4.124a, Code 8045. There is no evidence or allegation that prior to February 20, 2018 the TBI manifested in impaired judgment (judgment has consistently been normal on examination); inappropriate social interaction (such interaction has consistently been reported as normal on examination); disorientation (the Veteran was always oriented to all spheres); impaired motor activity (none reported); impaired visual spatial orientation (none reported); neurobehavioral effects that interfere with workplace or social interaction (none reported); impaired communication (communication has consistently been normal on examination); or impaired consciousness. The level of severity of each of these facets warrants a 0, as designated by the table for evaluating residuals of TBI. The table specifies that the rating assigned shall reflect the highest number assigned for any factor. The numbers are not added. A level 1 severity warrants a 10 percent rating. Consequently, prior to February 20, 2018, a rating in excess of 10 percent for the Veteran’s residuals TBI was not warranted. The Board has considered the Veteran’s subjective complaints regarding his symptoms, to include his headaches. However (as discussed above), other manifestations do not support that additional separate or higher ratings are warranted. The Board also notes the lay statements submitted by the Veteran in support of this claim. Those statements describe the types of problems that resulted from his TBI symptoms. The levels of functioning impairment he described are encompassed by the criteria for the 10 percent rating assigned; they do not support that a higher schedular rating was warranted prior to February 20, 2018. 2. Entitlement to a rating in excess of 50 percent for TBI from February 20, 2018 is denied. An August 2020 rating decision awarded service connection for an acquired psychiatric disorder of adjustment disorder with mixed anxiety and depressed mood due to TBI, rated 50 percent effective February 20, 2018. From February 20, 2018, the Veteran’s TBI and adjustment disorder have been assigned one rating under Code 8045-9440. Code 8045 applies for rating TBI. However, a May 2018 VA examiner found that the symptoms of the Veteran’s TBI and currently diagnosed adjustment disorder are indistinguishable (“the symptoms of the disorders and their resulting impairment overlap significantly”). As the same symptoms may not be separately rated under two separate diagnostic codes (see 38 C.F.R. § 4.14), the Board has considered the symptoms both under the criteria for rating mental disability and those for rating TBI to determine whether from February 20, 2018 a rating higher than 50 percent is warranted under either criteria, considering all symptoms of the disabilities shown. See Mittleider v. West, 11 Vet. App. 181 (1998). Adjustment disorder is rated under Code 9440 (and the general rating criteria for mental disorders). A 50 percent rating is warranted for occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent (maximum schedular) rating is warranted for PTSD when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Thus, while certain symptoms might be present on isolated occasions, such symptoms must produce the contemplated levels of occupational and social impairment to provide a basis for increased rating assignments in any particular period. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Except as otherwise provided, the effective date of an award of increased compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. While “the date entitlement arose” is not defined in statute or regulation, the U.S. Court of Appeals for Veterans Claims (Court) has interpreted it as the date the claimant met the requirements for the benefit sought (here, when a TBI residual with a distinct diagnosis may be evaluated under a distinct diagnostic code, such as chronic adjustment disorder). See 38 U.S.C. § 5110 (a); see also Code 8045, Note 1. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 The questions before the Board are (1) when entitlement to separately evaluate a residual attributable to TBI with a distinct diagnosis under another diagnostic code (as here when it was shown that he had a distinct comorbid mental disorder and that it was attributable to his TBI) arose, and (2) whether a rating in excess to 50 percent for TBI and mental disability has been warranted since February 20, 2018. On March 15, 2018, the Veteran amended his claim for an increased rating to seek service connection for cognitive impairments due to his in-service TBI, following an intent to file a claim submission on February 20, 2018. After VA received the Veteran’s amended claim to include service connection for cognitive impairments due to TBI, an examination and opinion in the matter were sought, and the May 2018 medical opinion received indicated that the Veteran had a diagnosis of adjustment disorder with anxiety and depressed mood which was indeed due to his TBI. The June 2018 examiner confirmed that residuals attributable to TBI included a mental disorder. An August 2020 rating decision awarded an increased (to 50 percent) rating, effective February 20, 2018 (the date VA received the Veteran’ intent to file form) As noted above, during the pendency of the appeal for an increased rating for TBI, the Veteran filed a claim of service-connection for cognitive impairment due to his TBI. The first communication from the Veteran to VA seeking service connection for cognitive impairment was received February 20, 2018. Entitlement arose (a distinct diagnosis of adjustment disorder attributable to TBI with potential rating under Code 9440) was confirmed in May 2018. While the Veteran reported complaints of anxiety prior to that date, the evidence did not show that he had a separate and distinct psychiatric diagnosis that may be attributable to TBI. Thus, entitlement arose with the May 2018 VA examination. The agency of original jurisdiction (AOJ) presumably found that it was shown as of the date of claim, February 20, 2018, but was confirmed by the subsequent VA examination). The analysis turns to whether a rating in excess of 50 percent for adjustment disorder with TBI has been warranted since February 20, 2018. The Veteran’s adjustment disorder is not shown to at any time under consideration have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas. His psychiatric symptoms are not shown to have included obsessional rituals; irregular speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; an inability to establish and maintain effective relationships; or any other symptoms of similar nature and severity. While he reported on June 2018 VA examination a single, brief instance of suicidal ideation when his wife died, he has otherwise consistently denied suicidal or homicidal ideation throughout the pendency of this claim and there is no evidence of paranoia or psychosis. He has not expressed intent or plans to act on such thoughts, and they did not result in the level of impairment associated with a 70 percent rating. Additionally, while he reported panic attacks, they were not reported to be continuous/or near continuous. His adjustment disorder symptoms presented predominately as depressed mood, anxiety, sleep impartment, mild memory loss, and irritability. Furthermore, deficiencies in most areas simply are not shown. Private treatment records and the May 2018 VA examination report show he was married to his wife for 49 years prior to death, maintains good relations with his daughters and grandchildren (who visit daily), and meets with a group of 12 fellow Veterans for breakfast daily (which of itself reflects social adaptability). He is able to manage his own finances and tends to self-care. He apparently is not receiving any ongoing psychiatric treatment besides a prescription from his private primary care provider of anti-anxiety medication to take as needed. The disability picture presented by the evidence of record pertaining to the level of occupational and social functioning impairment due to symptoms of the Veteran’s adjustment disorder with anxiety and depressed mood, even as he self-reports on examinations conducted to assess the disability, does not rise to a level of occupational and social impairment with deficiencies in most areas or approximating that level (as required for a 70 percent rating). Accordingly a schedular rating in excess of 50 percent from February 20, 2018 under the criteria for rating mental disorders is not warranted. The Board has considered whether Code 8045 allows for a higher rating for the overall impaired function and finds that it does not. See Code 8045, Note 1. The Veteran’s TBI would warrant a 40 percent rating, based on the greatest impairment level assigned to a facet of TBI impairment being a 2. The June 2018 TBI examination report notes objective evidence of mild memory impairment (which warrants assignment of a ‘2’ level of impairment of for memory, concentration, attention, and executive functions). As both Codes 8045 and 9440 involve mild memory loss, the manifestation cannot be not clearly separated, and as a 50 percent rating under Code 9440 is already assigned, it is to the Veteran’s advantage for the rating assigned to be a 50 percent rating under Code 9440. REASONS FOR REMAND 3. Entitlement to a TDIU rating. Evidence pertaining to the TDIU claim has been associated with the record following issuance of the August 2020 supplemental statement of the case (SSOC) addressing that claim. An August 2020 Board decision awarded an increased (to 30 percent) rating for his cervical spine disability effective January 2, 2020 and also found that claims of service connection for bilateral upper extremity radiculopathy are part and parcel of the cervical spine increased rating claim, and remanded those claims for additional development. An October 2020 rating decision promulgated the Board’s finding of an increased rating for his cervical spine disability. [Records in his file show that a neurologic examination scheduling request (received November 9, 2020) to assess the nature and likely etiology of any upper extremity disabilities.] The AOJ has not considered the impact of the (Board found) increased severity of the cervical spine disability. Additionally, the TDIU issue is inextricably intertwined with the bilateral upper extremity radiculopathy claims that were remanded. Therefore, consideration of the TDIU matter must be deferred pending resolution of the other inextricably intertwined claims and to afford the AOJ opportunity for initial consideration of the additional evidence received. The matter is REMANDED for the following: 1. Ask the Veteran to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, thus providing provide the relevant employment and education information necessary to properly adjudicate his claim for a TDIU rating. 2. Upon adjudication of the other claims remanded, and following all further development indicated, to include that requested above, and following his submission of the completed form (and any further development suggested) readjudicate the claim for a TDIU rating considering the entire record. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.