Citation Nr: 21073656 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-05 000 DATE: December 9, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for residuals of a traumatic brain injury (TBI) is denied. Entitlement to a compensable evaluation for bilateral hearing loss, prior to November 14, 2016, is denied. Entitlement to an effective date of April 9, 2009 for an award of a separate rating for migraine headaches is granted. Entitlement to an initial compensable rating prior to April 23, 2019, for migraine headaches is denied. REMANDED Entitlement to an initial evaluation in excess of 30 percent for peripheral vestibular disorder, to include a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis, is remanded. Entitlement to an effective date earlier than July 14, 2014, for the award of a TDIU is remanded. Entitlement to an effective date earlier than July 14, 2014, for the establishment of basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is remanded. FINDINGS OF FACT 1. For the appeal period, the Veteran's TBI was manifested by symptomatology no worse than level "1" impairment for any of the relevant facets according to the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. 2. For the appeal period prior to November 14, 2016, the Veteran's bilateral hearing loss was manifested by no worse than Level II hearing acuity in each ear. 3. It is not factually ascertainable that an increase in hearing loss warranting a compensable rating occurred during the one-year period prior to receipt of the Veteran's increased rating claim on November 14, 2016. 4. The record evidence shows that the Veteran has had tension headaches associated with his service-connected TBI and tinnitus throughout the appeal period. 5. The record evidence shows that, prior to April 23, 2009, the Veteran experienced tension headaches with less frequent attacks and were not manifested by characteristic prostrating attacks averaging one in two months over the previous several months. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for service-connected residuals of TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code (DC) 8045. 2. The criteria for an initial compensable rating prior to November 14, 2016, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, 4.86, DC 6100. 3. The criteria for entitlement to an earlier effective date of April 9, 2009 for the award of a separate disability rating for tension headaches associated with TBI have been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 4. The criteria for an initial compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to April 1968. This appeal is before the Board of Veterans' Appeals (Board) from several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a May 2013 rating decision, the AOJ granted service connection for adjustment disorder with anxiety (also claimed as posttraumatic stress disorder and as depressive disorder) with an evaluation of 0 percent, effective November 1, 2010. In June 2013, VA received the Veteran's notice of disagreement. In a March 2015 rating decision, the AOJ granted service connection for peripheral vestibular disorder (claimed as dizziness), a residual of traumatic brain injury, with an evaluation of 10 percent, effective July 29, 2014; and tension headaches (claimed as headache), with an evaluation of 0 percent, effective July 29, 2014. The AOJ also denied increased ratings for sleep apnea, tinnitus, residuals of traumatic brain injury, post concussive syndrome, and bilateral hearing loss. In June 2015, VA received the Veteran's notice of disagreement. In a November 2019 Board decision, the Board denied the Veteran's claims for (1) a rating above 30% for peripheral vestibular disorder (PVD), including entitlement to a total disability rating based on individual unemployability (TDIU) based solely on PVD; (2) a compensable rating for bilateral hearing loss before November 14, 2016; (3) a rating above 10% for residuals of a traumatic brain injury (TBI); (4) a rating above 30% for an acquired psychiatric disability, including other specified trauma and stressor related disorder, for the whole appeal period; and (5) an effective date before July 14, 2014, for an award of a separate compensable rating for migraine headaches. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court or CAVC); and in February 2021, the Court issued a memorandum decision which affirmed the Board denial of a rating above 30% for an acquired psychiatric disability, including other specified trauma and stressor related disorder, for the whole appeal period, and set aside the claims for (1) a rating above 30% for peripheral vestibular disorder (PVD), including entitlement to a total disability rating based on individual unemployability (TDIU) based solely on PVD; (2) a compensable rating for bilateral hearing loss before November 14, 2016; (3) a rating above 10% for residuals of a traumatic brain injury (TBI); and (4) an effective date before July 14, 2014, for an award of a separate compensable rating for migraine headaches. The Court remanded the appeal to the Board for further adjudication on the merits. This appeal to the Board also arises from a July 2018 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) granted entitlement to a TDIU, effective July 14, 2014; basic eligibility for DEA benefits was also established, effective July 14, 2014. In July 2019, the Veteran filed a notice of disagreement (NOD) with the assigned effectives dates and a statement of the case (SOC) was issued in November 2019. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2020. In a September 2020 Board decision, the Board denied the Veteran's claims for entitlement to an effective date earlier than July 14, 2014, for (1) the award of TDIU; and (2) the establishment of basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code, finding that the Veteran did not file a timely appeal to its November 2019 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court or CAVC); and in June 2021, the Secretary and the Veteran filed a Joint Motion for Remand (JMR) which was granted by the CAVC in a July 2021 Order. The Court found that the Veteran had filed a timely appeal, ordered vacatur of the September 2020 Board decision, and remanded for further adjudication on the merits. The Board notes that a July 2018 rating decision granted the maximum schedular ratings for migraine headaches and peripheral vestibular disorder for the entirety of the appeal period. The rating decision considered these evaluations to be full grants of the issues on appeal. In a September 2019 statement, however, the Veteran's representative argued for higher and separate ratings related to these disabilities. As such, the Board retained jurisdiction. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 1. Entitlement to an evaluation in excess of 10 percent for residuals of a traumatic brain injury (TBI), to include entitlement to a separate rating for chronic fatigue syndrome (CFS). The Veteran seeks an increased rating for his TBI residuals. TBI residuals are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8045, based on three main areas of dysfunction: Cognitive, emotional/behavioral, and physical. 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. VA is to evaluate cognitive impairment under the table titled Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified ("TBI Table"). Subjective symptoms are to be evaluated under the subjective facet of the TBI Table whether or not they are part of cognitive impairment, unless they have a distinct diagnosis that may be evaluated under a separate diagnostic code, such as Meniere's disease or migraine headaches. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, such dysfunction is to be evaluated under the TBI Table. Physical and neurological dysfunction is to be evaluated separately under the appropriate diagnostic code. The TBI Table contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th 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. The 10 cognitive impairment facets are: consciousness, communication, neurobehavioral effects, subjective symptoms, visual spatial orientation, motor activity, orientation, social interaction, judgment, and one facet encompassing memory, attention, concentration, and executive function. There may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic disorder or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation is to be assigned based on the same manifestations. 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, a separate evaluation is assigned for each condition. 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. 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. The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of a TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. The Veteran underwent a VA examination in March 2010. There was a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Judgment was normal. Social interaction was routinely appropriate. He was always oriented to one of the four aspects. Motor activity was normal. Visual spatial orientation was mildly impaired, such that he gets lost occasionally in unfamiliar settings, difficulty following directions, and seeks help from his wife to read maps. Subjective symptoms were intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light, which are separately rated. The examiner noted one or more neurobehavioral effects that do not interfere with interaction. He was able to communicate and comprehend written and spoken language, with occasional impairment, and could communicate complex ideas. A private August 2010 neuropsychological evaluation, the treating psychologist noted that the Veteran reported "trouble multitasking, difficulty learning and retaining new information, loss of sex drive, forgetting conversations, episodes of slurred speech (esp. when fatigued), difficulty concentrating, and dizziness and impaired balance. He is also currently reporting. moderate symptoms of depression and anxiety, including nervousness, panic episodes, decreased self-confidence, fatigue, feeling worthless, and feeling he is being punished." The examiner noted that he had normal or superior findings on diagnostic testing. Working Memory Index was within the Average range, indicating that he is able to focus on information in short-term memory, to manipulate that information, and to accurately verbalize a result. His performance on the WAIS-lll Processing Speed Index was in the High Average range. Verbal learning was in the Superior range, and his immediate and delayed recall and recognition were all within normal limits. His immediate and delayed recall for stories were in the Superior range. Confrontational naming and semantic language fluency were above average, while phonemic language fluency was within normal limits. His performance on a test of simple information processing speed was mildly impaired, but his performance on the more complicated divided attention (multitasking) trial was within normal limits, with one impulsive error. The IVA±Plus is a test of attributes of auditory and visual attention and impulse control which requires the test taker to balance the demands of responding quickly with responding accurately. (The Veteran) sustained a good level of effort on this test. While he did have a circumscribed mild impairment in his ability to consistently stay on task with visual stimuli, his Overall ability to concentrate and sustain attention was within normal limits. He was able to communicate and comprehend written and spoken language. Consciousness was normal. The Veteran underwent a VA examination in May 2010. The Veteran reported weekly to bi-weekly vertigo, daily tinnitus, difficulty learning new things at work, such as computer systems, difficulty following instructions at work, and self esteem issues. The examiner noted "normal" or "unremarkable" findings for cognition, judgment, and speech. The Veteran underwent a VA examination in October 2010. The examiner found that the Veteran had cognitive or psychiatric impairment, including difficulty with memory and comprehension. The examiner noted that the Veteran had normal mood, judgment, and comprehension of commands, with appropriate behavior and average intelligence. The examiner noted that there was no history of memory loss, poor coordination, speech difficulty. The examiner also noted that the Veteran was "alert, oriented, pleasant, in no acute respiratory distress, ambulatory, cognitively intact, conversant with clear, spontaneous speech, and expresses himself well." However, the examiner did not make further findings, and referred to the March 2010 neurological examination. A February 2012 VA examination report, cited by the Veteran's representative, stated that the Veteran's memory impairment was moderate. However, the report also stated that the Veteran had mild memory loss and mildly impaired judgment. He was occasionally disoriented to person, time, place and situation. The examiner note the Veteran had difficulty with memory and concentration. The Veteran underwent a VA examination in January 2015. There was a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Judgment was impaired with occasional inability to identify, understand, or weigh alternatives and consequences for complex and unfamiliar decisions. Social interaction was routinely appropriate. He was occasionally disoriented to one of the four aspects; specifically, his wife tells him how and where to go. Motor activity was normal. Visual spatial orientation was mildly impaired, such that he seeks help from his wife to read maps. Subjective symptoms were limited to headaches, which are separately rated. The examiner noted one or more neurobehavioral effects that do not interfere with interaction; specifically, when he was still working, he got upset if computers did not work. He was able to communicate and comprehend written and spoken language. Consciousness was normal. The examiner noted residuals including hearing loss, tinnitus, headaches, and dizziness/vertigo, all of which are separately rated. In a February 2017 statement, the Veteran's representative argued that the evidence established that he exhibited daily complex partial epilepsy as a TBI residual, specifically from a September 2010 treatment record and his August 2010 private neuropsychological evaluation. In a December 2020 rating decision, the AOJ granted a separate compensable rating for epilepsy, effective July 14, 2014. In an accompanying statement dated November 2016, the Veteran reported fatigue with slurred speech in episodes occurring 4-5 times daily. These episodes affected his ability to remember, stand and walk. In an accompanying statement dated February 2017, the Veteran clarified that his fatigue incapacitated him an average of 2 weeks per month. His representative argued that this warranted a separate rating as chronic fatigue syndrome. The representative further argued that an opinion should be obtained as to whether neuropathy of the upper and lower extremities is secondary to his TBI. Additionally, the representative argued that service connection for erectile dysfunction secondary to TBI was warranted. In a December 2020 rating decision, the AOJ awarded a separate rating for erectile dysfunction, effective July 14, 2014. The Veteran underwent another VA examination in May 2018. There was a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. He reported trouble learning new things. Judgment was normal. Social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was normal. There were three or more subjective symptoms that moderately interfered with work, activities, and relationships, specifically headaches, memory problems, and ear problems. There were no neurobehavioral effects. He was able to communicate and comprehend written and spoken language. Consciousness was normal. The examiner noted residuals including hearing loss, tinnitus, headaches, dizziness/vertigo, and a mental health disability, all of which are separately rated. In a September 2018 statement, the Veteran's representative argued that separate ratings were warranted for erectile dysfunction, complex partial epilepsy, and fatigue with slurred speech. In this statement and in a January 2019 statement, the representative argued that a medical opinion should be obtained to determine whether his upper and lower extremity conditions stem from his TBI. The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's TBI residuals. Higher ratings are available for cognitive impairment supported by objective testing, moderately to severely impaired judgment, frequent to constant inappropriate social interaction, occasional to total disorientation to two of the four aspects, impaired motor activity, moderate to severe impairment of visual spatial orientation, three or more subjective symptoms with moderate interference, one or more neurobehavioral effects that frequently to constantly interfere with social or work interaction, more than occasional inability to communicate or comprehend, or a persistently altered state of consciousness. The evidence weighs against such manifestations. While the Veteran has consistently reported cognitive impairment, the objective testing at his August 2010 private neuropsychological evaluation showed no such impairment. Additionally, contemporaneous VA examinations supported the findings of the August 2010 examiner. During examinations, the Veteran was reported to have normal judgment, appropriate interaction, orientation, normal visual spatial orientation, without three of more subjective symptoms with moderate interference, or neurobehavioral effects which affected his ability to communicate or comprehend. The medical evidence, to include these examinations, show that the Veteran did not have moderately to severely impaired judgment, frequent to constant inappropriate interaction, occasional to total disorientation to two of the four aspects, impaired motor activity, moderate to severe impairment of visual spatial orientation, three or more subjective symptoms with moderate interference, one or more neurobehavioral effects that frequently to constantly interfere with social or work interaction, more than occasional inability to communicate or comprehend, or a persistently altered state of consciousness. Furthermore, the Veteran has not had objective testing since that time to contradict these results, and there is no indication that his symptoms have worsened since. As such, these cognitive symptoms warrant a rating of 10 percent. While the VA examiners found subjective symptoms, these consisted of headaches, vertigo, tinnitus, and a mental health disability. All of these symptoms are separately rated, and to grant an increased TBI rating based on them would be unlawful pyramiding. Furthermore, there is no evidence in the record of moderately to severely impaired judgment, impaired social interaction, occasional to total disorientation to two of the four aspects, impaired motor activity, moderate to severe impairment of visual spatial orientation, one or more neurobehavioral effects that frequently to constantly interfere with social or work interaction, inability to communicate or comprehend, or a persistently altered state of consciousness. For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's TBI residuals. The Board further finds that separate evaluations are not warranted for fatigue, slurred speech, or neuropathy of the extremities. Although the Veteran reported slurred speech at his August 2010 private neuropsychological examination, it was noted that no dysarthria was detected during examination by his neurologist. Furthermore, the evidence does not show that slurred speech caused more than an occasional impairment of spoken communication, which is already contemplated by a 10 percent TBI residual evaluation. The Board therefore finds that a separate evaluation for slurred speech is not warranted. As to fatigue, the Veteran reports that his episodes of fatigue occur four to five times per day and required 1 to 2 hours of rest to recover, and that his fatigue incapacitates him for 2 weeks each month. A disability not listed in the Schedule for Rating Disabilities may be rated analogously under a closely related disability in which the functions affected, anatomical localization (if applicable), and symptomatology are closely analogous (but organic disabilities will not be analogously rated to conditions of functional origin). 38 C.F.R. § 4.20, 4.27; cf. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that "when a condition is specifically listed in [VA's schedule for rating disabilities], it may not be rated by analogy."). When a rating is analogous, strict application of the criteria in Diagnostic Code 8100 is not appropriate. See 38 C.F.R. § 4.20; Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (faulting the Board's strict application of DC criteria to a condition being rated by analogy); NEW OXFORD AMERICAN DICTIONARY 55 (3d ed. 2010) (defining "analogous" as "comparable in certain respects"); cf. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (holding that a veteran with post-traumatic stress disorder may qualify for a given schedular evaluation for a mental disorder under 38 C.F.R. § 4.130 by "demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration" (emphasis added)). Indeed, to assign an analogous evaluation, § 4.20 requires only "closely analogous"-and not identical-functional impairment, anatomic localization, and symptoms between an unlisted and a listed disability. To the extent that the Veteran's fatigue can be analogous to chronic fatigue syndrome, such ratings are not applicable to fatigue associated with other clinical symptoms or diagnoses. 38 C.F.R. § 4.88a. In this case, the Veteran's fatigability is contemplated by the criteria for rating TBI residuals as a subjective symptom. Additionally, the Veteran is noted to have fatigue related to his service-connected obstructive sleep apnea and mental health condition. Furthermore, compensable ratings for chronic fatigue syndrome are only available for periods of incapacitation with required bed rest and treatment by a physician. 38 C.F.R. § 4.88b, Diagnostic Code 6354. VA treatment records do not show any significant treatment for fatigue during the appeal period. VA treatment records do not reflect periods of incapacitation of at least one week per year associated with the reported fatigue symptoms nor does the evidence of record reflect that the Veteran takes continuous medication to manage the fatigue symptoms. The Veteran has not contended otherwise. Further, much of the reported fatigue symptoms have been attributed to the service-connected TBI and PVD. As such, the Board finds that the weight of the evidence is against a finding that the Veteran had fatigue that results in periods of incapacitation of at least one-week total duration per year to warrant a compensable (10 percent) rating under Diagnostic Code 6354 at any time during the appeal period. See 38 C.F.R. § 4.88b. The Board therefore finds that a separate evaluation for fatigue is not warranted. As to his neuropathy, the Board finds no indication in the record that neuropathy of the extremities is related to the Veteran's TBI beyond the speculation of his representative. The argument appears to be based entirely on the fact that his August 2010 private neuropsychological examination report listed under the current diagnoses of his medical history, "chronic back and leg pain (S1 defect), frozen joint in right foot, possible neuropathy in his feet." There is no indication in this record that by listing these conditions the examiner meant to connote a relationship to his TBI. Indeed, the very next condition listed is "environmental allergies." The fact that his physician also noted "decreased pinprick sensation in both feet" was clearly made in the context of possible etiologies to his balance issues when investigating his vertigo. Furthermore, reports of numbness and neuropathy at his November 2010 general VA examination show no relationship to his TBI. As such, the Board finds that remand for an opinion is not necessary. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's residuals of TBI. The Veteran's residuals of TBI consist of largely subjective symptoms. There is no evidence in the record of moderately to severely impaired judgment, impaired social interaction, occasional to total disorientation to two of the four aspects, impaired motor activity, moderate to severe impairment of visual spatial orientation, one or more neurobehavioral effects that frequently to constantly interfere with social or work interaction, inability to communicate or comprehend, or a persistently altered state of consciousness. Additionally, as detailed above, he has been granted separate ratings for several objective conditions, such as headaches, tinnitus, hearing loss, epilepsy and vertigo. For these reasons, the Board finds that a rating in excess of 10 percent is not warranted for residuals of TBI. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a compensable evaluation for bilateral hearing loss, prior to November 14, 2016. The Veteran seeks an increased rating for his hearing loss. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38C.F.R. §4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. §4.86(a). The provisions of 38C.F.R. §4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. Applying the criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating for bilateral hearing loss have not been met for any time prior to November 14, 2016. Overall, the credible lay and medical evidence establishes that the Veteran's service-connected bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear and Level II hearing acuity in the left ear. The Veteran underwent a VA examination in June 2009. He reported difficulty in understanding conversations. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 45 75 80 LEFT 25 30 45 70 75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The Veteran underwent a VA examination in November 2010. He reported difficulty in understanding conversations. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 35 65 75 LEFT 20 25 35 60 70 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. VA treatment records reflect that in August 2014 the Veteran reported difficulty hearing with his current hearing aids. He underwent audiometric testing, but pure tone thresholds and speech recognition percentages were not included in his records. His audiologist noted mild to severe hearing loss 250-8000 hertz bilaterally, with good speech/tone agreement with excellent word recognition scores. The Veteran underwent a VA examination in January 2015. He reported difficulty understanding conversations. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 75 85 LEFT 30 30 40 70 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. In a February 2017 statement, the Veteran's representative reported that his hearing had worsened since his most recent examination, based on an attached statement from the Veteran dated November 14, 2016. To the extent that the Veteran contends that his hearing loss was more severe than evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing and understanding speech, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's reports of difficulty hearing and understanding speech. Even after considering such contentions, the Board finds that the criteria are not met for a compensable rating prior to November 16, 2016. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). In August 2021 argument, the Veteran's representative asserted that the Veteran met the criteria for a compensable rating for hearing loss as of the day after the January 2015 VA examination, or alternatively, the Board should remand the Veteran's claim for a compensable rating for bilateral hearing loss before November 14, 2016 for a retrospective opinion. The Veteran's audiometric testing results are largely consistent for the period from June 2009 to January 2015. Additionally, while there are treatment records which indicate worsening requiring an adjustment to the Veteran's hearing aids, this occurred prior to the January 2015 audiometric testing and it, alone, is not sufficient to warrant an increased rating. The record contains the November 2016 statement from the Veteran stating that his hearing had worsened since the last examination and VA treatment records from the time period. The Board finds that a retrospective opinion is not warranted in this case based on the November 14, 2016 statement as there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds that, for the period prior to November 14, 2016, a compensable rating is not warranted for the Veteran's hearing loss. His audiometric readings and his speech recognition scores at his January 2015 VA examination show no worse than Level II hearing loss in both ears. Compensable ratings are not available for hearing loss that has not reached Level IV in at least one ear. Furthermore, the Veteran's thresholds do not meet the criteria for exceptional hearing loss under 38 C.F.R. § 4.86. For these reasons, the Board finds that a compensable rating is not warranted for hearing loss prior to November 14, 2016. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an effective date earlier than July 14, 2014, for an award of a separate rating for migraine headaches. The Board finally finds that the evidence supports assigning an earlier effective date of April 9, 2009, for the award of a separate disability rating for tension/migraine headaches. As noted above, a March 2015 rating decision granted a separate noncompensable rating for headaches associated with tinnitus effective July 29, 2014. In a subsequent March 2016 rating decision, the AOJ granted an earlier effective date of July 2014. The Veteran initially filed an increased rating claim for TBI in April 2009. In a May 2010 rating decision, the AOJ granted a separate evaluation for tinnitus effective April 2009, and continued the rating for residuals of TBI, post-concussive syndrome. The May 2010 rating decision did not become final in regard to the issue of entitlement to an increased rating for TBI residuals as new and relevant records were received within one year of the decision and it did not become final. A September 2010 letter from a private physician noted that the Veteran had chronic headaches related to his traumatic brain injury and took medication for the symptoms. Evidence obtained through development of the TBI claim, including the March 2010 TBI and tinnitus examination reports, consistently show that he complained of and was diagnosed with headaches related to his TBI and tinnitus. In its May 2015 rating decision granting service connection for tension headaches, the RO found that the Veteran's tension headaches are associated with his tinnitus. Taken together, the evidence reasonably supports finding that the Veteran has pursued a claim for service connection for tension headaches alongside his TBI and tinnitus claim. Therefore, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that an earlier effective date of April 9, 2009 (the date of claim for a TBI) is warranted because the claim for headaches has been part and parcel of the Veteran's TBI and tinnitus claim. The Board notes that in a February 2017 statement, the Veteran asserted that an October 2007 VA examination for TBI residuals constituted an informal claim under 38 C.F.R. § 3.517 for an increased rating for the TBI, to include assignment of a separate rating for migraines. The Board does not find that the symptoms described in the October 2007 VA examination constituted an unadjudicated claim for headaches. This evidence was addressed in a December 2007 rating decision which denied the Veteran an increased rating for TBI residuals manifested by constant tinnitus, headaches, and slurring of speech with fatigue. He did not appeal the decision nor did he submit evidence within the one-year appeal period, and the decision therefore became final. The Veteran has specifically asserted that his migraines should not have been combined with his TBI residuals, but separately rated under Diagnostic Code 8100 for migraines. The Board finds that it does not have jurisdiction to address this argument as the December 2007 rating specifically stated that the Veteran's TBI residuals were manifested by constant tinnitus, headaches and slurring of speech with fatigue, and it is a final decision. The Veteran has not asserted that there was a clear and unmistakable error (CUE) in the December 2007 rating decision, and that issue has not been adjudicated. After the final December 2007 rating decision, the Veteran filed a new claim for an increased rating for TBI residuals on April 9, 2009, and the Board finds that a separate rating for headaches is warranted from that date. In conclusion, the Board finds that an earlier effective date of April 9, 2009, but no earlier, is warranted. 4. Entitlement to an initial compensable rating prior to April 23, 2019, for migraine headaches. The Board finally finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial compensable rating prior to July 14, 2014, for tension headaches. The Veteran contends that his service-connected tension headaches are more disabling than currently (and initially) evaluated prior to April 23, 2019. As the Board explained in its October 2019 decision, the Veteran is in receipt of a 50 percent rating from July 14, 2014, for service-connected tension headaches which is the maximum schedular rating provided under DC 8100. See 38 C.F.R. § 4.124a, DC 8100. Neither the Veteran nor his attorney have raised any other issues with respect to a disability rating greater than 50 percent effective July 14, 2014, for tension headaches, that were not adjudicated in the October 2019 Board decision. See Doucette, 28 Vet. App. at 369-70. Therefore, as there is no legal basis for a higher rating from July 14, 2014, the Board's analysis of the issue of an increased rating for tension headaches under DC 8100 will focus on the appeal period prior to that date. Entitlement to a compensable rating for the period from April 9, 2009 to July 14, 2014. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable 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 the last several months. The rating criteria of DC 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 DC 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" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. During a June 2009 VA TBI examination, the Veteran reported experiencing weekly, but not daily, headaches which lasted minutes. He reported that when headaches occur, he is able to perform ordinary activities with some limitations. The Veteran was afforded a VA TBI examination in May 2010. The examiner diagnosed tension headaches. The examiner noted that the Veteran reported "pounding" headaches three to four times a week, which last approximately an hour. The Veteran denied any associated diplopia, blurred vision, nausea, vomiting or dizziness. The Veteran had phonophobia with his headaches. The September 2010 letter from a private physician noted that the Veteran had chronic headaches that had responded well to medication and he was now headache free. VA treatment records reflect that in August 2011 the Veteran reported headaches occurring three to four times a week, which are relieved by daily medication. The Veteran was afforded another VA examination in February 2012. The examiner diagnosed tension headaches. The examiner noted that the Veteran reported daily severe headaches which last approximately two hours. He states they last an hour or so. The Veteran denied any associated nausea or vomiting. The Veteran had moderate sensitivity to light and sound with his headaches. VA treatment records reflect that in July 2014 the Veteran reported to his social worker that he had headaches. The Veteran underwent a VA examination in January 2015. He reported daily headaches with constant, pulsating or throbbing pain on both sides of his head accompanied by muscle tightness. He was diagnosed with tension headaches with no characteristic prostrating attacks. Taken together, the Board finds that the record evidence as a whole is against awarding an initial compensable rating prior to July 14, 2014, for tension headaches associated with TBI. The record evidence dated from that period consistently showed that the Veteran's headaches were not prostrating. He also has not contended that his headaches are prostrating. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial compensable rating prior to July 14, 2014, for tension headaches associated with TBI. Thus, the Board finds that the criteria for an initial compensable rating prior to July 14, 2014, for tension headaches associated with TBI have not been met. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 30 percent for peripheral vestibular disorder, to include TDIU on an extraschedular basis, is remanded. The Veteran seeks an increased rating for his peripheral vestibular disorder. Peripheral vestibular disorders are rated under 38 C.F.R. § 4.87, Diagnostic Code 6204. Under this code, the Veteran's current 30 percent rating is warranted for dizziness and occasional staggering. This is the maximum schedular rating available. The Veteran underwent a VA examination in January 2015. He reported episodes of vertigo occurring a few times per month lasting 30 minutes to an hour. Episodes consist of a spinning sensation. He is prescribed continuous medication for his episodes. He was diagnosed with a peripheral vestibular disorder. In a February 2017 statement, the Veteran's representative reported that he had episodes of vertigo several times per day which caused him to stagger and fall at least once per week. The Veteran underwent another VA examination in May 2018. He reported vertigo several times per week lasting 5-10 minutes. He reported that he has to lay down for the vertigo to go away. He was diagnosed with peripheral vestibular disorder. The examiner found that the Veteran was unable to work due to vertigo. In a September 2019 statement, the Veteran's representative noted that the Veteran was already in receipt of a TDIU. The representative argued that a TDIU should be granted based entirely on the Veteran's vertigo, because such an award could then form the basis of an award of special monthly compensation under Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). The Veteran is already in receipt of the maximum schedular rating for his peripheral vestibular disorder, and neither the Veteran nor his representative have identified any way in which his disability is more severe or unusual than contemplated by the criteria for a 30 percent rating. The Board therefore finds that an evaluation in excess of 30 percent is not warranted and will address his claim for a TDIU based on this disability. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service ("Director") for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The fact that a veteran is in receipt of a combined schedular rating of 100 percent does not preclude the availability of a TDIU. Although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC, and thus must be considered by the Board. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As he only has a 30 percent rating for his peripheral vestibular disorder, a schedular TDIU under 38 C.F.R. § 4.16(a) is not available to the Veteran as a matter of law. However, the Board finds that remand for referral to the Director for consideration for an extraschedular TDIU under 38 C.F.R. § 4.16(b) is warranted. In this case, the May 2018 VA examiner found that the Veteran was not able to work due to his vertigo. The May 2018 examination found that the occasional need to lie down a few times per week for 10 minutes would render the Veteran result in occupational impairment. The evidence suggests that the Veteran's PVD could render him incapable of maintaining the employment of which he is otherwise capable without accommodation. Additionally, the April 2010 private psychologist noted that the Veteran had dizziness, instability, and impaired balance. The psychologist also noted that the Veteran diminished cognitive abilities and possible intermittent cognitive disruption while noting that "episodic problems certainly would render the typical workday more difficult." This evidence suggests that the Veteran's service-connected PVD may have rendered him unemployable, such that referral of the Veteran's claim of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service is warranted. 2. The claim of entitlement to an effective date earlier than July 14, 2014, for the award of a TDIU is remanded. 3. The claim of entitlement to an effective date earlier than July 14, 2014, for the establishment of basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is remanded. Finally, because a decision on the referred issue of entitlement to an initial evaluation in excess of 30 percent for peripheral vestibular disorder, to include TDIU on an extraschedular basis, could significantly impact a decision on the issues of entitlement to an effective date earlier than July 14, 2014, for TDIU and the establishment of basic eligibility for Dependents' Educational Assistance (DEA) benefits, the issues are inextricably intertwined. A remand of the claims for entitlement to an effective date earlier than July 14, 2014, for TDIU and the establishment of basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code is required. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU based solely on PVD to VA's Director of Compensation Service for extraschedular consideration. K. Marenna Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.