Citation Nr: 21065151 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-20 977 DATE: October 25, 2021 ORDER Entitlement to an initial evaluation for headaches of 50 percent, but no higher, is granted for the entire period on appeal. The rating reduction for headaches from 50 percent to noncompensable effective September 1, 2020, was improper, and restoration of a 50 percent rating is warranted. For the entire period on appeal, entitlement to an initial evaluation of 100 percent for traumatic brain injury (TBI) is granted. Entitlement to an earlier effective date prior to January 30, 2018, for the grant of service connection for tinnitus as secondary to service-connected TBI, is granted. Entitlement to an earlier effective date prior to January 30, 2018, for the grant of special monthly compensation (SMC) based on housebound criteria, is granted. FINDINGS OF FACT 1. During the entire period on appeal, resolving reasonable doubt in the Veteran's favor, the Veteran's headaches more nearly approximated very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 50 percent evaluation is the maximum schedular rating available for headaches. 2. For the period beginning September 1, 2020, the lay and medical evidence of record does not show actual improvement in the Veteran's migraine headaches or his ability to function under the ordinary conditions of life and work. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's TBI residuals were productive of a total level of impairment of memory, attention, concentration, and executive functions throughout the relevant appeal period. 4. The Veteran filed his claim for TBI (claimed as head injury due to heatstroke) on October 28, 2014, and service connection for tinnitus was granted as secondary to service-connected TBI. 5. The Veteran is in receipt of a 100 percent rating based on a single disability (TBI) as of October 28, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, but no higher, for headaches effective October 28, 2014, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100. 2. The reduction of the evaluation of the Veteran's service-connected headaches from 50 percent to noncompensable, effective September 1, 2020, was improper, and restoration of the 50 percent rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, Diagnostic Code 8100. 3. For the entire period on appeal, the criteria for an initial evaluation of 100 percent for residuals of TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8045. 4. The criteria for assignment of an effective date of October 28, 2014, for the award of service connection for tinnitus have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 5. The criteria for entitlement to an earlier effective date of October 28, 2014, for SMC based on housebound criteria are met. 38 U.S.C. §§ 1155, 3501, 3510, 5103, 5103A, 5107, 5113; 38 C.F.R. §§ 3.340, 3.341, 3.400, 3.807(a), 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to December 1983. These claims are on merged appeal from April 2015, March 2017, and June 2018 rating decisions. The issues of entitlement to increased initial evaluations for TBI and headaches were remanded for additional development in February 2019. That development has been completed, and the case has since been returned to the Board for appellate review. Initially, the Board notes that the Veteran included earlier effective date claims for the increased evaluations for headaches and TBI. A June 2018 rating decision increased the evaluation of the Veteran's headaches from noncompensable to 50 percent disabling, effective January 30, 2018. The June 2018 rating decision also increased the evaluation of the Veteran's TBI disability from 10 percent to 100 percent disabling, effective January 30, 2018. The Veteran contends he is entitled to earlier effective dates for the increased evaluations of his TBI and headaches. However, these are not true earlier effective date claims. The RO did incorrectly refer to the January 30, 2018, claim for SMC based on housebound status as the "date of the claim." Although it is not entirely clear from the record, it appears that the increased ratings for headaches and TBI were granted based on the March and April 2018 VA examinations. See June 2018 rating decision. The RO then used the January 30, 2018, SMC claim as the effective date, presumably because this claim is what prompted the new evaluations. Although the RO improperly referred to the January 30, 2018, claim for SMC as the "date of claim," the Veteran is essentially requesting that the increased ratings that were granted during the appeal period go all the way back to the date of the initial claim for service connection. These claims are addressed by the increased rating analyses infra and do not need to be listed as separate issues. By appealing the initial ratings throughout the entire claim period, the Veteran effectively asked the Board to review the appropriateness of the ratings at all times throughout the period on appeal. That is to say, an evaluation of the effective date of each part of a staged rating is part and parcel of the Board's review of the claim for a higher initial rating. As such, the Board has already evaluated the effective dates of the ratings in its analysis of the claims for higher initial ratings in the sections below. Increased Rating 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Rating Reductions Federal regulation, 38 C.F.R. § 3.105(e), sets forth procedural requirements for reducing compensation evaluations. When a reduction is anticipated and would decrease the overall monetary benefits received by the veteran, the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. After expiration of the 60-day period, if no hearing is requested, a rating action will be taken to effectuate the reduction based on the evidence of record. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). A reduction is void ab initio, if the RO reduces a veteran's disability rating without following these requirements. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In addition, in any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). When a rating has continued for a long period at the same level (5 years or more), any rating reduction must be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). In the present case, as the 50 percent rating for the Veteran's headaches was not in effect for more than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. Effective Dates The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) ("increase" for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). 1. Entitlement to an initial increased evaluation for headaches By way of background, in October 2014, the Veteran filed a claim for entitlement to service connection for a head injury. In an April 2015 rating decision, the RO granted entitlement to service connection for headaches and granted a noncompensable evaluation effective October 28, 2014, the date of the claim for service connection. The Veteran disagreed with the initial rating assigned. A June 2018 rating decision increased the rating for the Veteran's headaches disability to 50 percent (the maximum rating under Diagnostic Code 8100), effective January 30, 2018, which the RO described as the "date of claim." It appears the RO based the increased 50 percent rating on the April 2018 examination, which was afforded in response to the January 30, 2018, claim for SMC. In a March 2020 rating decision, the RO proposed to decrease the Veteran's headaches disability based on a January 2020 VA examination which the RO found showed that the Veteran no longer had any characteristic prostrating attacks or migraine/non-migraine headache pain productive of severe economic inadaptability. In a subsequent June 2020 rating decision, the RO decreased the Veteran's headaches disability to noncompensable, effective September 1, 2020. The Veteran's service-connected headaches are currently assigned a noncompensable evaluation prior to January 30, 2018; a 50 percent evaluation from January 30, 2018, to September 1, 2020; and a noncompensable evaluation thereafter, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent disability evaluation is assigned when there are characteristic prostrating attacks, averaging one in 2 months over the last several months. A 30 percent disability evaluation is contemplated for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. VA regulations, including the rating criteria, do not define "prostrating" as used in Diagnostic Code 8100. The Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, Third College Edition (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th ed. 1994) in which "prostration" is defined as "extreme exhaustion or powerlessness." As to the term "productive of economic inadaptability," such term could have either the meaning of "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant the 50 percent rating. See Pierce, 18 Vet. App. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. See Pierce, 18 Vet. App. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing severe economic inadaptability. Additionally, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of his disability. Id. As set forth above, the applicable rating criteria link ratings for headaches to two elements: severity and frequency. The Board finds that a uniform 50 percent rating is appropriate in this case. During an April 2015 VA headaches examination, the examiner noted the reported history of headaches since approximately 1982, preceded by a "whistle sound" followed by a headache on the right side, in the temple region. The Veteran described the pain as "sharp," lasting for a couple of minutes. He stated that he takes some ibuprofen and the headache usually goes away. He reported nausea with some headaches, but no vomiting or photophobia. He indicated that sound does not bother him. He told the examiner that he gets headaches every other day. He had never seen a physician for his headaches. It was also noted that he had a history of strokes, three in the past three years, and had carotid endarterectomy on both sides. Symptoms at that time included pulsating or throbbing head pain localized to one side of the head and nausea. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. It was noted that while in service he passed out and hit his head on the right side where he now has the headaches. The examiner found that his headache condition did not impact his ability to work. See April 2015 VA examination report. Another VA examination was performed in January 2017. The examiner diagnosed the Veteran with migraine headaches including migraine variants. It was noted that he had a head injury during service in 1983 when he fell and hit his head on the concrete. He reported headaches and was taking over the counter aspirin and ibuprofen. Symptoms at that time were pain on both sides of the head and light/sound sensitivity. Duration of typical head pain was less than one day. The examiner found that the Veteran did not have any characteristic prostrating attacks of headache pain. There were no other pertinent physical findings or symptoms. The examiner found that the Veteran was limited in certain occupations due to his headaches. See January 2017 VA examination report. During an April 2017 VA examination, it was noted that the Veteran fell in 1983 while standing in formation and suffered a laceration over the right side of his face. The Veteran reported headaches four times per week, rated as 4-5/10 on the pain scale. He treated his headaches with over-the-counter NSAIDs as needed. Reported symptoms at that time consisted of pulsating or throbbing headache pain on both sides of the head. Duration of typical head pain was less than one day. He did not have any characteristic prostrating attacks of migraine/non-migraine headache pain. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to his headache disability. The examiner found no functional impact as a result of his headache disability. See April 2017 VA examination report. For the period prior to January 30, 2018, it is unclear whether the 2015 and 2017 examiners considered the ameliorative effects of medication in finding that the Veteran did not experience characteristic prostrating attacks of migraine headache pain. In this regard, the Veteran reported regular use of aspirin, ibuprofen and over-the-counter NSAIDS to treat his headaches (for example, he stated that he takes some ibuprofen and the headache usually goes away). It has been established that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and severity of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication in evaluating the severity of his disability. Id. Resolving reasonable doubt in the Veteran's favor, the Board finds that without the ameliorative effects of medication, the Veteran's headaches would have satisfied the criteria for a 50 percent rating. The January 2017 examiner found that the Veteran was limited in certain occupations due to his headaches. During a January 2017 Decision Review Officer (DRO) hearing, the Veteran described daily headaches with sharp pain on both sides of the head and eyes. He testified that sometimes he has to sit down and close his eyes and take an aspirin. He also testified that the headaches affect his ability to concentrate. He stated that he had to quit his job as a cook because of the headaches. He indicated that he takes aspirin every day to try to control his headache symptoms. The Veteran stated that the headaches have been present since the injury in-service. See January 2017 DRO hearing transcript. For these reasons, the Board finds that an initial 50 percent rating for headaches is warranted from October 28, 2014, the date of the claim for service connection. In this regard, an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In a June 2018 rating decision, the RO increased the evaluation of the Veteran's service-connected headache disability to 50 percent disabling, effective January 30, 2018. A 50 percent evaluation is the maximum schedular evaluation for migraine headaches under Diagnostic Code 8100. Therefore, an evaluation in excess of 50 percent is not warranted. 2. Propriety of the September 2020 rating reduction for headaches from 50 percent to zero percent Regulations "impose a clear requirement that VA rating reductions ... be based upon a review of the entire history of the Veteran's disability." Brown, supra. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, supra. The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). During an April 2018 VA examination, the Veteran reported that his condition had worsened. He told the examiner he treated his headaches with Motrin. Symptoms at that time consisted of constant head pain, pulsating or throbbing head pain, and pain localized to one side of the head. He also reported non-headache symptoms including nausea, vomiting, light and sound sensitivity, changes in vision, and sensory changes. The duration of his typical head pain was 1-2 days, located on the right side. The April 2018 examiner indicated that the Veteran had characteristic prostrating attacks of migraine headache pain and very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner described the functional impact of his headache disability as headache pain interfering with the ability to concentrate and complete the tasks at hand. See April 2018 VA examination report. As stated above, in a June 2018 rating decision, the RO increased the evaluation of the Veteran's service-connected headache disability to 50 percent disabling, effective January 30, 2018. During a January 2020 VA examination, the Veteran reported headaches about 3-4 times per week. He stated that the pain "comes and goes" and lasts about 30 minutes. Medication consisted of amitriptyline at bedtime and ibuprofen. Symptoms at that time consisted of pain on both sides of the head and light sensitivity. The examiner found that he did not have characteristic prostrating attacks of migraine/non-migraine headache pain. There were no other pertinent physical findings or symptoms. Functional impact was described as difficulty with focus and concentration as well as performing complex tasks. See January 2020 VA examination report. In a March 2020 rating decision, the RO proposed to decrease the evaluation for headaches to zero percent. Notification was sent out April 2, 2020. There was no response from the Veteran and no request for a predetermination hearing, and in a June 2020 rating decision, the evaluation for the Veteran's headaches was decreased to noncompensable effective September 1, 2020. Thus, the Board finds that the due process provisions of 38 C.F.R. § 3.105(e) are satisfied. However, the Board finds that the rating reduction was improper and not consistent with the overall evidence of record. The evidence does not show that the improvement in the headaches disability actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Although the January 2020 examiner indicated that the Veteran did not have characteristic prostrating attacks of migraines, the examiner did find that the Veteran would have difficulty with focus and concentration as well as performing complex tasks as a result of his headaches condition. The same functional impact was noted in the April 2018 VA examination which resulted in the 50 percent rating. In addition, the Veteran reported headaches about 3-4 times per week lasting 20-30 minutes and described the pain as "sharp." He also noted treatment with new medication, Amitriptyline and ibuprofen 800 mg. (previously he reported only taking Motrin). See January 2020 VA examination report. Although the VA examination upon which the reduction was predicated showed improvement, this evidence when considered in light of the other evidence of record does not show that there has been sustained improvement of the Veteran's headache disability reasonably certain to be maintained under the ordinary conditions of life and work. Thus, and resolving all reasonable doubt in the Veteran's favor, the Board finds that restoration of the previous 50 percent rating is warranted. 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7. 3. Entitlement to an initial evaluation in excess of 10 percent for traumatic brain injury (TBI) prior to January 30, 2018 The Veteran's TBI is currently assigned a 10 percent evaluation prior to January 30, 2018, and a 100 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 provides an evaluation for three main areas of dysfunction that may result from traumatic brain injury 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. 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 TBI Not Otherwise Classified." Id. Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, the emotional/behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of traumatic brain injury are evaluated, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headaches or Meniere's disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" table. Id. 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. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate 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 combined under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. The need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. should also be considered. Id. Under Diagnostic Code 8045, the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of 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." A 100 percent evaluation will be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated at "total," the overall evaluation is 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. Id. For the facet memory, attention, concentration, executive functions, a "0" level of impairment is assigned with no complaints of impairment. A "1" level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A "2" level is assigned with objective evidence on testing of mild impairment. A "3" level is assigned with objective evidence on testing of moderate impairment. A "total" level is assigned with objective evidence on testing of severe impairment. For the facet judgment, a "0" level of impairment is assigned for normal judgment. A "1" level is assigned with 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. A "2" level is assigned with 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. A "3" level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A "total" level is assigned with 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 and activities. For the facet social interaction, a "0" level of impairment is assigned when social interaction is routinely appropriate. A "1" level is assigned when social interaction is occasionally inappropriate. A "2" level is assigned when social interaction is frequently inappropriate. A "3" level of impairment is assigned when social interaction is inappropriate most or all of the time. For the facet orientation, a "0" level of impairment is assigned when always oriented to person, time, place and situation. A "1" level is assigned when occasionally disoriented to one of the four aspects of orientation. A "2" level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A "3" level is assigned when often disoriented to two or more of the four aspects of orientation. A "total" level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the facet motor activity, (with intact motor and sensory system) a "0" level of impairment is assigned for normal motor activity. A "1" level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A "2" level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A "3" level is assigned for motor activity moderately decreased due to apraxia. A "total" level is assigned for motor activity severely decreased due to apraxia. For the facet visual spatial orientation, a "0" level of impairment is assigned when normal. A "1" level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as global positioning system (GPS). A "2" level is assigned when 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. A "3" level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A "total" level is assigned when severely impaired: 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. For the facet subjective symptoms, a "0" level of impairment is assigned for 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 or mild anxiety). A "1" level is assigned with 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). A "2" level is assigned with 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). For the facet neurobehavioral effects, a "0" level of impairment is assigned for 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 more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A "1" level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A "2" level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A "3" level is assigned with 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. For the facet communication, a "0" level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A "1" level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A "2" level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A "3" level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A "total" level is assigned for 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. For the facet consciousness, a "total" level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. However, not every facet has every level of severity. The "subjective symptoms" facet, for example, provides for an impairment level of 0, 1, or 2, which corresponds to 0 percent; 10 percent; and 40 percent, respectively. Notes are included with Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of Traumatic Brain Injury Not Otherwise Classified" with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" 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. Note (5): A veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to an initial evaluation of 100 percent for his TBI disability throughout the entire appeal period. During a January 2017 examination, the Veteran reported falling during service in 1983 and hitting his head against the concrete. He reported headaches treated with aspirin. The examiner noted that he reported mild memory loss described as short-term memory problems, but without objective evidence on testing. His judgment was normal. Social interaction was described as routinely appropriate. He was fully oriented to person, time, place and situation. Motor activity was normal. Visual spatial orientation was normal. The examiner found subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family or other close relationships, described as headaches. There were no neurobehavioral effects of TBI. The Veteran was able to communicate by spoken and written language (expressive communication) and comprehend spoken and written language. Consciousness was normal. It was noted that he had headaches attributable to TBI. There were no other pertinent physical findings or symptoms. Functional impact was described as being limited in certain occupations due to his headaches. See January 2017 VA examination report. The Board notes that the Veteran's headache disability is separately service-connected, and therefore, may not be considered for purposes of evaluating the TBI. The Veteran's tinnitus and obstructive sleep apnea secondary to service-connected TBI are also separately service-connected. On and after January 30, 2018, the Veteran's TBI is evaluated as 100 percent disabling. He was also awarded SMC based on housebound status from that date. The Veteran's representative argues that the RO did not address certain relevant evidence, e.g., his wife's lay statements and a report from Dr. M.R. (initials used to protect privacy). See September 2020 third-party correspondence. The Veteran submitted neurological testing conducted in September 2017 by Dr. M.R., a psychologist. The evaluation consisted of various tests, e.g., the Wechsler Adult Intelligence Scale, the Dichotic Word Listening Test, and the Clock Drawing Task, among other objective tests. The RO considered Dr. M.R.'s evaluation and found that the neuropsychological testing summary sheet provided by Dr. M.R. was not in compliance with VA's Disability Benefits Questionnaire. The RO also stated that Dr. M.R. failed to differentiate between the residuals of his service-connected TBI and his non-service-connected residuals of cerebrovascular accident (CVA). See November 2017 statement of the case (SOC). Nevertheless, the private evaluation showed severe cognitive problems and these findings were later confirmed by the March 2018 VA examination. In this regard, an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The neuropsychological battery administered by Dr. M.R. showed significant impairments in auditory and visual memory, language skills, and processing speed. In addition, his wife testified that he has short-term memory problems, e.g., repeating the same thing over and over. See January 2017 DRO hearing transcript. Similarly, the March 2018 examiner found moderate to severe cognitive impairment including with memory, attention and concentration, and abstract verbal reasoning. He was unable to count backward from 100 by serial 7's consistently. He was unable to repeat sentences verbatim. He was able to repeat 5/5 words but could not recall any words after a time delay, indicating impairment of delayed memory. Orientation was also impaired, and he was unable to identify the correct date. The 2018 examiner stated that his significant memory deficits, executive functioning problems, and concentration problems would negatively impact his ability to engage or complete job-related tasks. See March 2018 VA examination report. Given the relatively short gap in time between the September 2017 private psychological evaluation and the March 2018 VA examination, the Board finds the most probative evidence of record is the March 2018 examination which indicates a severe level of impairment was present throughout the entire appeal period. Therefore, the Board finds the assignment of an initial evaluation of 100 percent is warranted for residuals of the Veteran's TBI. The Board notes that the Veteran's TBI is currently evaluated as 100 percent disabling and he is also receiving SMC based on housebound criteria. Accordingly, there is no basis to consider entitlement to TDIU. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 4. Entitlement to an earlier effective date prior to January 30, 2018, for the granting of service connection for tinnitus During an April 2018 VA examination for hearing loss and tinnitus, the Veteran alleged onset of tinnitus after hitting his head during service. The examiner opined that his tinnitus was at least as likely as not related to military service and in a June 2018 rating decision, the RO granted service connection for tinnitus with an effective date of January 30, 2018, the date of the claim for SMC based on statutory housebound criteria. However, tinnitus was granted as a symptom of his service-connected TBI; therefore, the effective date is the date of the claim for TBI, October 28, 2014. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 5. Entitlement to an earlier effective date prior to January 30, 2018, for the granting of special monthly compensation (SMC) based on housebound criteria SMC at the rate provided under 38 U.S.C. § 1114(s) is payable where a Veteran has a single service-connected disability rated as 100 percent disabling and either additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems or is otherwise "permanently housebound" by reason of such disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). One is permanently housebound when substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.351(d). In the June 2018 rating decision on appeal, the Veteran was awarded special monthly compensation based on housebound criteria, effective January 30, 2018, based on the 100 percent evaluation for TBI and additional service-connected disabilities which independently combined to at least 60 percent disabling. For the reasons discussed above, the Board is granting initial ratings of 100 percent for TBI and 50 percent for headaches from October 28, 2014, the date of the claim for a head injury. In addition, the Board finds that the Veteran is entitled to service connection for tinnitus secondary to service-connected TBI from October 28, 2014. Therefore, the Veteran meets the schedular percentage requirements described above to warrant SMC based upon statutory housebound criteria prior to January 30, 2018. As a result, the Board concludes that the criteria for an effective date prior to January 30, 2018, are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran is entitled to SMC based on housebound status from October 28, 2014, the date of the claim for a head injury. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (observing that entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.