Citation Nr: 21063947 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-40 888 DATE: October 18, 2021 ORDER Service connection for bilateral hearing loss is denied. An initial 30 percent disability rating for service-connected headaches is granted. An initial rating in excess of 10 percent from October 15, 2012 to September 29, 2019 and in excess of 40 percent from September 30, 2019 for service-connected traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not have a current diagnosis of bilateral hearing loss that meets the requirements of a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385. 2. The evidence of record reflects that throughout the entire appeal period the Veteran's service-connected headaches are characterized by frequent completely prostrating attacks; however, the preponderance of the evidence shows that the headaches are not prolonged or productive of severe economic inadaptability. 3. The preponderance of the evidence shows that the Veteran's TBI symptoms that are not rated under separate diagnostic codes do not warrant higher level than "1" on the table of facets from October 15, 2012 to September 29, 2019 and do not warrant higher level than "2" on the table of facets from September 29, 2019. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for an initial 30 percent disability rating, but not higher, for service-connected headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria for an initial rating in excess of 10 percent from October 15, 2012 to September 29, 2019 and in excess of 40 percent from September 30, 2019 for service-connected TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2000 to October 2000, March 2003 to April 2004, May 2007 to July 2008, and from July 2011 to October 2012. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss and granted service connection for headaches and assigned a noncompensable disability rating, effective October 15, 2012. In that rating decision, the RO also granted service connection for traumatic brain injury and assigned a 10 percent rating, effective October 15, 2012. The Veteran's notice of disagreement (NOD) was received in January 2014. The RO issued a statement of the case (SOC) in June 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in August 2017. In October 2019, the Board remanded the case to the RO for further development and adjudicative action. 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that he currently has bilateral hearing loss due to acoustic trauma from weapon fire, explosions, IEDs, trucks, and generators while he was deployed during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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). Certain chronic diseases, to include arthritis and sensorineural hearing loss and tinnitus as other organic diseases of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a bilateral hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. Hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). A September 2013 VA audiology examination report reveals that the auditory thresholds for the right and left ears did not meet the requirements of 26 dB or greater in at least three of the required frequencies listed above or 40 decibels or greater in any of the required frequencies. Speech recognition scores in both ears using the Maryland CNC test were 96 percent. A May 2018 private audiology evaluation shows that the auditory thresholds for the right and left ears did not meet the requirements of 26 dB or greater in at least three of the required frequencies listed above or 40 decibels or greater in any of the required frequencies. While it is unclear if the May 2018 speech recognition scores used Maryland CNC, the speech recognition score was 100 percent in the right ear and 96 percent in the left ear. As the May 2018 private audiological findings showed a worsening in the Veteran's degree of hearing impairment and the Veteran's representative requested another VA examination to determine whether the Veteran had sufficient hearing loss for VA purposes in the September 2019 written brief, the claim was remanded to obtain another VA audiology examination. A December 2020 VA audiology examination report reveals that the auditory thresholds for the right and left ears did not meet the requirements of 26 dB or greater in at least three of the required frequencies listed above or 40 decibels or greater in any of the required frequencies. Speech recognition scores in both ears using the Maryland CNC test were 98 percent. Therefore, the medical evidence of record reflects that the Veteran did not have a current diagnosis of a bilateral hearing loss disability under VA regulations at any time during the appeal period or recent to the filing of the claim. The evidence supporting bilateral hearing loss disability consists of the lay statements from the Veteran. Specifically, the Veteran contends that he has hearing loss due to active service. Although lay testimony is competent as to observable symptoms and some medical matters, the criteria for establishing a current hearing loss disability are specifically enumerated in 38 C.F.R. § 3.385 which requires minimum audiometric and speech recognition scores to meet those criteria. Cf. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's statements therefore cannot establish a current hearing loss disability for purposes of VA compensation benefits. The grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. In the case of hearing loss, the regulations explicitly state the auditory decibel threshold required. Congress specifically limits entitlement for service-connected disability to cases where an in-service disease or injury has resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of evidence of a present disability due to disease or injury, there can be no valid claim. Id. Accordingly, without evidence of a current bilateral hearing loss disability, entitlement to service connection for bilateral hearing loss is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The benefit of the doubt doctrine is not applicable in this regard, because the preponderance of the evidence is against the claim for service connection. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). In general, when 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, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to an initial compensable disability rating for service-connected headaches. The Veteran contends that he is entitled to a compensable disability rating for his service-connected headaches. The Veteran's service-connected headaches are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 for migraine headaches. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated as 10 percent disabling. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. Migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran's symptoms more nearly approximate headaches with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under Diagnostic Code 8100. Specifically, the medical and lay evidence of record reflects that the Veteran's headaches are manifested by frequent completely prostrating attacks, however, the preponderance of the evidence shows that the headaches are not prolonged or productive of severe economic inadaptability throughout the appeal period. In this regard, an October 2013 VA examination reveals that the Veteran reported that his headaches occur three to four times per week lasting three to four hours. The Veteran rated the intensity of the headaches as seven out of ten. He described the headaches as sharp and located at the crown of the head on the right and temporal right side. The Veteran reported photophobia and nausea with the headaches. When he would experience these headaches, he had to lay down. He missed work twice in the past month and while in school he was not able to concentrate due to headaches. The examiner determined that the Veteran experienced headache pain that worsened with physical activity. Non-headache symptoms associated with his headaches included nausea, sensitivity to light, and sensitivity to sound. The duration of typical head pain was less than one day. The examiner determined that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner determined that the Veteran's headache condition impacted his ability to work and that he would benefit from a job that would allow for days off when had severe flare-ups of his headaches. During a November 2020 VA examination for headaches, the Veteran reported that he sometimes experienced nausea with his headaches. The examiner documented that the Veteran took extra strength Excedrin daily for his headaches. The Veteran experienced pulsating or throbbing head pain on both sides of the head. When he had severe headaches, he was unable to do anything. His headaches would last one to two hours. Excedrin helped his headaches. He worked five days a week as a truck driver. The Veteran had to call out three to four time a year due to severe headaches. The examiner documented that the duration of the Veteran's typical head pain was less than one day. The frequency of characteristic prostrating attacks of headache pain was less than one in two months over the last several months. The examiner determined that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. The examiner stated that the Veteran's headache condition impacted his ability to work. In this regard, during severe episodes of headaches, the Veteran would have difficulty performing overall physical work activities and he would also miss work due to severe headaches. The examiner noted that the Veteran said he had called out three to four times a year due to severe headaches. The Veteran is competent to describe the frequency, severity, and duration of his headaches, and there is no reason to doubt his credibility in this regard. The lay and medical evidence reflect that the Veteran experienced frequent completely prostrating attacks at the time of the October 2013 VA examination. As noted above, the Veteran reported headaches with nausea and photophobia three to four times a week. The Veteran also indicated that these headaches were completely prostrating, as he reported that when he would experience these headaches, he had to lay down. The November 2020 VA examination reflects that the Veteran reported that when he had severe headaches, he could not do anything. Unfortunately, the examiner did not document the Veteran's response with respect to the frequency of his severe headaches, but noted that the frequency of characteristic prostrating attacks of headache pain occurred less than one in two months over the last several months. Accordingly, resolving any reasonable doubt in favor of the Veteran, the medical and lay evidence reflects that the Veteran's headache symptoms more closely approximates a 30 percent disability rating throughout the appeal period. A 50 percent disability rating for the Veteran's service-connected tension headaches is not warranted even though the evidence shows frequent completely prostrating attacks as the preponderance of the evidence shows that the Veteran's headaches were not prolonged in duration and they are not productive of severe economic inadaptability at any time during the appeal period. Specifically, the medical and lay evidence shows that the Veteran's headaches were not prolonged as the duration was less than one day and usually lasted from one to four hours throughout the appeal period. Regarding economic inadaptability, the Veteran reported that he missed work twice in the past month during the October 2013 VA examination. He also noted that when he had headaches during school, he was unable to concentrate. The October 2013 VA examiner determined that the Veteran's headache condition impacted his ability to work and that he would benefit from a job that would allow for days off when had severe flare-ups of his headaches. The November 2020 VA examination reveals that the Veteran worked as a truck driver five days a week. He had to call out three to four times a year due to severe headaches. The examiner determined that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. The examiner stated that the Veteran's headache condition impacted his ability to work in that during severe episodes of headaches, the Veteran could have difficulty performing overall physical work activities and also miss work. In this case, the medical and lay evidence shows that the Veteran's headaches did not significantly impact or interfere with his ability to work. Thus, the headaches are not productive of severe economic inadaptability. Further, the assignment of a 30 percent rating reflects the level of functional impairment caused by the headaches which adequately accounts for the level of occupational functional impairment throughout the appeal period. 3. Entitlement to an initial rating in excess of 10 percent from October 15, 2012 to September 29, 2019 and in excess of 40 percent from September 30, 2019 for service-connected TBI residuals, which are not rated under separate diagnostic codes. The Veteran's TBI residuals include a diagnosed psychiatric disorder of posttraumatic stress disorder (PTSD), tinnitus, and headaches. These symptoms are separately rated under the appropriate diagnostic codes pursuant to the regulatory guidance on how to rate TBI residuals under 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Veteran is also in receipt of service connection for chronic fatigue syndrome and fibromyalgia, which includes symptoms that overlap with the residuals of TBI. The Veteran contends that a higher rating for his residuals of TBI is warranted under Diagnostic Code 8045. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from traumatic brain injuries 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Here, in accordance with Diagnostic Code 8045, the Veteran is rated separately for PTSD under Diagnostic Code 9411, tinnitus under Diagnostic Code 6260, and headaches under Diagnostic Code 8100. As explained under 38 C.F.R. § 4.124a, Diagnostic 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. Under Diagnostic Code 8045, cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Under Diagnostic Code 8045, subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, as is the case here, the residuals with a distinct diagnosis (PTSD, tinnitus, and headaches) have already been properly separately evaluated under other diagnostic codes rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, irrespective of whether those diagnoses are based on subjective symptoms. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. 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, no more than one evaluation based on the same manifestations is to be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is 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, separate evaluations for each condition should be assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (1). The table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" provides evaluations (numeric designations of 0, 1, 2, 3, and total) for the following 10 facets: Impairment of memory, attention, concentration, executive functions; Impairment of Judgment; Impairment of Social Interaction; Impairment of Orientation; Impairment of Motor Activity; Impairment of Visual Spatial Orientation; Subjective Symptoms; Neurobehavioral Effects; Communication; and, Consciousness. Turning to the evidence of record, an October 2013 VA examination for residuals of TBI reveals that the Veteran had head trauma with brief loss of consciousness after an IED blast. The IED was underneath his truck causing the truck to flip and an injury to his head. He was taken to a TBI clinic where he received treatment for a week. The Veteran reported symptoms of headaches, memory loss, decreased concentration, sleep disturbance, nightmares, and increase irritability. He indicated that was independent inal his daily activities and he was able to drive to the appointment. Assessment of facets of TBI related cognitive impairment and subjective symptoms of TBI revealed a complaint of mild impairment of memory loss, attention, concentration, and/or executive functions, but without objective evidence on testing. The examiner noted to refer to the history section. The Veteran's judgment was normal, and his social interaction was routinely appropriate. With respect to orientation, the examiner determined that the Veteran was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation were normal. The examiner documented that the Veteran had no subjective symptoms or neurobehavior effects. He was able to communicate by spoken and written language and to comprehend spoken and written language. Consciousness was normal. The examiner determined that the Veteran had hearing loss and/or tinnitus, headaches including migraine headaches, and mental disorder attributable to a TBI. The examiner documented that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms. A June 2018 VA examination for PTSD reveals that the Veteran reported that he was currently employed as a CDL driver since 2015. He mostly drives in teams and complete short, local hauls. The Veteran indicated that his work had been impacted by his lack of focus, difficulty concentrating, getting lost, and low productivity. At the time of the examination, he was also in the Army Reserves. He found himself to be short tempered with other soldiers. The examiner determined that the Veteran had the following symptoms attributable to his PTSD diagnosis: depressed mood, anxiety, suspiciousness, pani attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted that the Veteran has a diagnosis of PTSD and TBI. The examiner explained that it was possible to differentiate what symptoms is/are attributable to each diagnosis. The examiner indicated that the Veteran's mild memory loss to include forgetfulness and problems focusing is attributable to his TBI. However, the examiner determined that it was not possible to differential what portion of the occupational and social impairment is caused by his symptoms of TBI. The examiner explained that the Veteran's symptoms appear to overlap in which they all moderately impact his social and occupational functioning. A November 2020 VA examination for residuals of TBI shows that the Veteran reported that condition began in 2011 after an explosion in an army vehicle. Symptoms at onset were headache and sharp pain. His current symptoms are headaches that he treats with Excedrin. Assessment of facets of TBI related cognitive impairment and subjective symptoms of TBI revealed objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The examiner noted that the Veteran had lapses in memory and difficulty concentrating. The Veteran's judgment was normal. His social interaction was occasionally inappropriate. The examiner explained that the Veteran avoided large crowds and he was easily irritable. With respect to orientation, the examiner determined that the Veteran was always oriented to person, time, place, and situation. Motor activity was normal. Visual and spatial orientation was normal. The examiner noted that the Veteran had three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living; or work, family, or other close relationships. The examiner explained that the Veteran had daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. The Veteran had one or more neurobehavioral effects that did not interfere with workplace or social interaction. The examiner stated the Veteran was easily irritable and aggressive. The Veteran had impaired awareness of disability at times. The Veteran was also impulsive and lacked motivation. The Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. Consciousness was normal. The examiner determined that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms. The examiner noted that the Veteran's residual conditions attributable to TBI impact his ability to work in that he has an inability to concentrate and complete tasks. The examiner also noted that it was difficult to distinguish between service-connected headaches and headaches caused by TBI, because the symptoms overlap. Based on a review of the evidence of record, the most pertinent of which was discussed above, the evidence shows that the Veteran's symptoms of TBI which are not already rated under a separate diagnostic code more nearly approximate a severity level of "1" from October 15, 2012 to September 29, 2019 and a severity level of "2" from September 30, 2019. In this regard, Diagnostic Code 8045, note (1) reveals that 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, VA cannot assign more than one evaluation based on the same manifestations as this would constitute pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided and the evaluation of the same manifestation under different diagnoses are to be avoided). In this case, the Veteran's symptoms of memory, attention, concentration, and executive functioning impairment were not evaluated under Diagnostic Code 9411 for PTSD. While the General Rating Formula for Mental Disorders, which is used to evaluate symptoms of PTSD includes consideration of mild memory loss, impairment of short and longterm memory loss, and memory loss for names of close relatives, own occupation, own name, the June 2018 VA examiner indicated that the Veteran's mild memory loss to include forgetfulness and problems focusing is attributable to his TBI. In the May 2020 rating decision that assigned an initial 70 percent disability rating for PTSD, the RO noted that the VA examiner opined that it was possible to differentiate which symptoms are attributable to TBI and PTSD and determined that the Veteran's symptoms of mild memory loss to forgetting names, directions, or recent events was not included in the PTSD evaluation as VA regulations prevent the evaluation of the same disability under varying diagnostic codes. The October 2013 VA examiner determined that the Veteran had mild impairment of memory loss, attention, concentration, and/or executive functions, but without objective evidence on testing. In November 2020, a VA examiner, objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment due to the Veteran experiencing lapses in memory and difficulty concentrating. Thus, as the symptoms under memory, attention, concentration, and executive functioning facet were not separately accounted for under another diagnostic code, a severity level of "1" is warranted from October 15, 2012 to September 29, 2019 and a severity level of "2" is warranted from September 30, 2019, the date the Veteran indicated that his symptoms had increased in severity. Regarding social impairment, the October 2013 VA examiner determined that the Veteran's social judgement was normal. However, the VA examiner in November 2020 provided the opinion that the Veteran's social interaction was occasionally inappropriate. The examiner explained that the Veteran avoided large crowds and he was easily irritable. The Veteran's symptoms of irritability and avoidance of large crowds were documented as symptoms of the Veteran's PTSD and were considered in the assignment of the 70 percent disability rating for his service-connected PTSD. See June 2018 VA examination and May 2020 rating decision. With respect to subjective symptoms and neurobehavioral effects, the October 2013 VA examiner determined that the Veteran did not have subjective symptoms or neurobehavior effects. The November 2020 VA examiner provided the opinion that the Veteran had three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living; or work, family, or other close relationships. The examiner explained that the Veteran had daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. The November 2020 VA examiner also determined that the Veteran had one or more neurobehavioral effects that did not interfere with workplace or social interaction as the Veteran was easily irritable and aggressive. The medical evidence reflects that the Veteran's headaches caused hypersensitivity to sound and light. The subjective symptoms of headaches and sensitivity to sound and light were considered and evaluated under the separate diagnostic code that evaluates migraine headaches. The symptoms of tinnitus were also evaluated under a separate diagnostic code for tinnitus. The Veteran's insomnia and/or sleep impairment was considered and evaluated under separate diagnostic codes that evaluate chronic fatigue syndrome and fibromyalgia. See January 2020 VA examinations and January 2020 rating decision. The Veteran's symptoms of irritability and aggressiveness were considered and evaluated under Diagnostic Code 9411 for his PTSD. See June 2018 VA examination and May 2020 rating decision. Thus, as the symptoms under social impairment facet were separately accounted for under other diagnostic codes, a severity level of "0" is warranted for subjective symptoms and neurobehavioral effects throughout the appeal period. The remaining facets of judgement, orientation, motor activity, visual spatial orientation, communication, and consciousness facets reveal a severity level of 0 throughout the appeal period. Given the above, the preponderance of the evidence shows that the highest level of impairment in all of the facets was "1" from October 15, 2012 to September 29, 2019 and the highest level of impairment in all of the facets was a severity level of "2" from September 30, 2019. Accordingly, in initial rating in excess of 10 percent from October 15, 2012 to September 29, 2019 and in excess of 40 percent from September 30, 2019 for service-connected TBI, which are not rated under a separate diagnostic code, is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.