Citation Nr: 21074427 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-58 908 DATE: December 15, 2021 ORDER For the increase rating period from July 11, 2016 to February 9, 2021, a 40 percent disability rating, but no higher, for residuals of traumatic brain injury (TBI), is granted. For the increase rating period from February 9, 2021, a disability rating in excess of 40 percent for residuals of TBI is denied. FINDINGS OF FACT 1. For the increase rating period from July 11, 2016 to February 9, 2021, consideration of TBI residuals under the various facets of the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table have approximated a severity of "2" or a lower disability rating. 2. For the increase rating period from February 9, 2021, TBI residuals are either more appropriately rated under separate diagnostic codes, or consideration under the various facets of the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table have resulted in a severity of "2" or a lower disability rating than that obtained when rated under a separate Diagnostic Code. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, for the increase rating period from July 11, 2016 to February 9, 2021, the criteria for a 40 percent disability rating, but no higher, for residuals of TBI have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.25, 4.124a, Diagnostic Code (DC) 8045. 2. For the increase rating period from February 9, 2021, the criteria for a disability rating in excess of 40 percent for residuals of TBI have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.25, 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from February 1980 to May 1980, from February 1983 to June 1983, and from May 2005 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision from the Regional Office (RO), which reduced the rating for the service-connected residuals of TBI from 10 percent to 0 percent, effective September 30, 2016. A July 2016 rating decision restored the rating for residuals of TBI to 10 percent effective September 30, 2016, and an April 2021 rating decision granted a higher 40 percent rating effective February 9, 2021. As the Veteran has not expressed satisfaction with the assigned ratings, his claim remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2019, the Veteran appeared at a Central Office Board hearing in Washington DC, before a Veterans Law Judge who is no longer with the Board. Pursuant to 38 C.F.R. § 20.707, the Veteran was advised in letters dated in September and July 2021, of his right to a second Board hearing before another judge. The Veteran did not respond to the letter or otherwise request an additional hearing. A transcript of the hearing before the prior Veterans Law Judge is in the record. In January 2021, the Board remanded the issue on appeal for additional development, to obtain outstanding VA treatment records and a new VA examination and opinion. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the January 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. TBI Rating Criteria Diagnostic Code 8045 provides for the rating of TBI. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 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. Adjudicators are to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, 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 TBI Not Otherwise Classified." However, they are to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Adjudicators are 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, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Adjudicators are to evaluate physical (including neurological) dysfunction 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, adjudicators are to evaluate under the most appropriate Diagnostic Code. Adjudicators are to evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine 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 table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of 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 level, the highest level of impairment, labeled "total". However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than total," since any level of impaired consciousness would be totally disabling. Adjudicators are to assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," adjudicators are to assign the overall percentage evaluation 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, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. The rating assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury (TBI) not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. Id. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. 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. Id. 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. Id. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of 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. Id. 1. Rating Residuals of TBI from July 11, 2016 to February 9, 2021 TBI residuals (other than tinnitus, headaches, PTSD, scalp scar, and trigeminal neuralgia of the jaw) are assigned a 10 percent rating under 38 C.F.R. § 4.124a, DC 8045, from July 11, 2016 to February 9, 2021. In November 2019 Board testimony, the November 2017 VA Form 9, and the May 2017 Notice of Disagreement the Veteran asserted that residuals of TBI have caused various overlapping symptoms, such as symptoms of tinnitus, frequent insomnia, depression, headaches, limited social interactions, and some memory problems. The Veteran testified that he also has problems with hypersensitivity to light and sound, issues with smell, dizziness, and spatial orientation deficits to the extent that he has difficult judging the distance between himself and objects and he tends to miss a turn when traveling to familiar places at time; however, he is able to use GPS for navigation when driving. A review of the evidence during the relevant rating period shows that the Veteran has a history of TBIs during service in 2004 and 2005, for which he was previously evaluated by neurology and polytrauma. During the relevant rating period, the Veteran has been primarily treated for PTSD and posttraumatic headaches, which are already service-connected and assigned separate 50 percent disability ratings. See May 2017, October 2018, August 2019 VA treatment records; April 2021 rating decision. The Veteran is also separately rated and compensated for tinnitus, trigeminal neuralgia of the jaw, and a scar on the scalp as well. See rating decision code sheet. VA treatment records during the rating period are otherwise silent for complaints or treatment of additional residuals of TBI. See May 2017 VA treatment record; August 2019 VA treatment record. The Veteran underwent VA TBI examinations in September 2016 and September 2017. During the September 2016 VA examination the Veteran reported mild memory loss and noted that he has to write a list to recall things. The VA examiner assessed a complaint of mild memory loss without objective evidence of deficits in memory, attention, concentration, and executive functions, as the Veteran scored a 30/30 on the Montreal Cognitive Assessment (MoCA) Test. The examiner also assessed one or more neurobehavioral effects that do not interfere with work or social interaction based on the Veteran's report some irritability and anger. The VA examiner otherwise assessed normal judgment; routinely appropriate social interaction; full orientation to person, time, place, and situation; normal motor activity; normal visual spatial orientation; no subjective symptoms; normal ability to produce and comprehend written and verbal communication; and normal consciousness. The examiner concluded TBI resolved and there were no residuals. September 2016 VA examination report. A VA examination was provided in September 2017 during which the Veteran endorsed TBI symptoms of daily headaches and memory problems. The VA examiner assessed a complaint of mild memory loss without objective findings, as the Veteran reported being forgetful of errands, names of new acquaintances, conversations, and problems with word finding. The VA examiner assessed normal judgment; routinely appropriate social interaction; full orientation; normal motor activity; normal visual spatial orientation; no subjective symptoms; normal ability to produce and comprehend written and verbal communication; and normal consciousness. See September 2017 VA examination report. During the rating period on appeal from July 11, 2016 to February 9, 2021, the weight of the evidence indicates that manifestations of TBI approximated a severity of "2" or a lower disability rating under DC 8045, so warrants a higher 40 percent rating. Turning to the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, the Board notes that each facet was addressed in the September 2016 and September 2017 VA TBI examinations. The first facet is memory, attention, concentration, and executive functions. The Board has considered whether the Veteran would be entitled to a higher disability rating for complaints of deficits in memory, attention, and concentration under DC 8045. A level of severity of "1" has been assigned for the memory, attention, concentration, and executive functions facet indicating a complaint of mild memory loss, attention, concentration, or executive functions without objective evidence on testing. A higher level of severity of "2" is not warranted unless there is objective evidence of mild impairment of memory, attention, concentration, or executive functions. While the Veteran testified to some problems with memory, such as recalling names of acquaintances, problems with word finding, and forgetting to complete tasks in the absence of a written list, etc., the evidence reflects that the Veteran's memory remained intact on testing as he scored a 30/30 on the MoCA Test and demonstrated intact long- and short-term memory, the ability to follow multistep commands, and good abstract thinking during outpatient VA encounters. See September 2016, September 2017 VA examination reports; see also October 2018, August 2019 VA treatment records. Moreover, as a severity level of "1" denotes a 10 percent rating under the TBI rating criteria (DC 8045), and the Veteran is currently assigned a separate 50 percent rating for the service-connected psychiatric disorder (PTSD), which contemplates symptoms such as difficulty understanding complex commands impairment; impairment of short and long term memory (e.g., retention of only highly learned information, and forgetting to complete tasks), mild memory loss (e.g., forgetting names, directions, and recent events); and impaired abstract thinking, among others, so it is more beneficial to rate symptoms of mild memory deficits as a part of the service-connected psychiatric disability, which is assigned a higher 50 percent rating. Symptoms of subjective mildly impaired memory and concentration may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). A level of severity of "0" has been assigned for the judgment facet, indicating that the examiners found evidence of normal judgment. A higher level of severity of "1" is not warranted unless an examiner finds evidence of 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. As a severity of "0" denotes a 0 percent disability rating under the TBI rating criteria, and the Veteran is currently service connected for a psychiatric disability, it is more favorable for judgment to be considered as a part of the 50 percent rating assigned for the service-connected psychiatric disorder, which contemplates impaired judgment, impaired abstract thinking, and difficulties understanding complex commands rather than the TBI rating criteria. See 38 C.F.R. § 4.14 A level of severity of "1" has been assigned for the social interaction facet, indicating that social interaction is occasionally inappropriate. VA examiners have assessed routinely appropriate social interaction. The Veteran testified that he is able to interact with his spouse, kids, and the patrons of his business appropriately, but he otherwise withdraws socially, as he tends to feel overwhelmed in social settings. Resolving reasonable doubt in the Veteran's favor, a level of severity of "1" has been assigned for the social interaction facet. A higher level of severity of "2" is not warranted unless social interaction is frequently inappropriate. As a severity of "1" denotes a 10 percent disability rating under the TBI rating criteria, and the Veteran is currently service connected for a psychiatric disability, it is more favorable for social interactions to be considered as a part of the 50 percent rating assigned for the service-connected psychiatric disability, which contemplates difficulties establishing and maintaining effective work and social relationships, rather than the TBI rating criteria. Symptoms of occasionally inappropriate social interaction may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. A level of severity of "0" has been assigned for the orientation facet, indicating that the examiners assessed that the Veteran is always oriented to person, time, place, and situation. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as occasional disorientation to one of the four aspects (person, time, place, situation) of orientation. A level of severity of "0" has been assigned for the motor activity (with intact motor and sensory system) facet, indicating normal motor activity. A higher level of severity of "1" is not warranted unless an examiner finds that motor activity is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities). A level of severity of "2" has been assigned for the visual spatial orientation facet, indicating visual spatial orientation to be moderately impaired, including usually getting lost in unfamiliar surroundings, having difficulty reading maps, following directions, judging distance, and having difficulty using assistive devices, such as GPS (global positioning system). Although the examiners in September 2016 and 2017 assessed normal visual spatial orientation, in light of testimony of that the Veteran may at time miss a turn when traveling to familiar places and that he bumps his head due to difficulty judging the distance between himself and objects at times, but otherwise maintains the ability to utilize GPS for navigation, the Board has resolved reasonable doubt in the Veteran's favor in finding that a severity level of "2" is indicated in this facet. A higher level of severity of "3" is not warranted unless an examiner finds evidence of moderately severe impairment, including getting lost in familiar surroundings and unable to use assistive devices such as GPS. A level of severity of "1" has been assigned for the subjective symptoms facet, indicating three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. The VA examiners assessed no subjective symptoms of TBI. However, the Veteran testified that he has had problems with sensitivity to light and sound, problems with smell, dizziness, headaches, and tinnitus. As noted above, headaches and tinnitus have already been assigned separate 50 percent and 10 percent disability ratings, so may not be the basis of a separate rating for TBI under DC 8045, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. To the extent that the Veteran endorsed some sensitivity to light and sound, diminished smell, and dizziness, the lay and medical evidence of record does not indicate that these symptoms cause more than mild interference with work or activities of daily living. The Veteran's testified that he mitigates his sensitivity to light with sunglasses and treatment records indicated that the Veteran has maintained normal gait and a negative Romberg despite subjective reports of some dizziness. See November 2019 Board Hearing Transcript; October 2018, August 2019 VA treatment records. As such, the Board has resolved reasonable doubt in the Veteran's favor in finding that a severity level of "1" is indicated in this facet. A higher level of severity of "2" is not warranted unless an there is evidence of three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships. A level of severity of "1" has been assigned for the neurobehavioral effects facet, indicating one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A higher level of severity of "2" is not warranted unless an examiner finds one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both on most days. A severity of "1" denotes a 10 percent disability rating under the TBI rating criteria. As the Veteran is currently service connected and assigned a 50 percent rating for a psychiatric disability, which also contemplates neurobehavioral effects in workplace and social interaction, neurobehavioral effects cannot support a higher or separate rating under the TBI rating criteria as rating such symptoms separately under Diagnostic Code 8045 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. A level of severity of "0" has been assigned for the communication facet, indicating that the examiner found evidence that the Veteran is able to communicate by spoken and written language (expressive communication), and comprehend spoken and written language. A higher level of severity of "1" is not warranted unless an examiner finds comprehension or expression, or both, of either spoken language or written language that is only occasionally impaired, and that the veteran can communicate complex ideas. Finally, for the rating period on appeal from July 11, 2016 to February 9, 2021, the evidence does not indicate that the Veteran experienced a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma; therefore, the evidence does not meet a total disability rating due to state of consciousness. For the rating period on appeal from July 11, 2016 to February 9, 2021, the TBI residuals have more nearly approximated a severity level of "2" or lower, to include as due to deficits in the visual spatial orientation that have not been contemplated and rated under a separate applicable diagnostic code, so warrants a separate 40 percent rating for TBI. 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.124a, DC 8045. 2. Rating Residuals of TBI from February 9, 2021 TBI residual have been assigned a 40 percent disability rating for the increase rating period from February 9, 2021 under DC 8045. 38 C.F.R. § 4.124a. VA treatment records are silent for treatment of any additional residuals of TBI that have not already been contemplated and compensated under the various facets of the "Evaluation of Cognitive Impairment and Other Residuals of TBI" or under separate diagnostic codes. A VA TBI examination was provided in February 2021. During the examination, the Veteran continued to endorse problems with headache, depression, anxiety, difficulty with focus and concentration, impaired spatial orientation, memory loss, and sensitivity to light and noise. See February 2021 VA examination report. After a review of all the lay and medical evidence, the Board finds that a rating in excess of 40 percent for TBI residuals is not approximated for the rating period from February 9, 2021. As it relates to the facets of memory attention, concentration, and executive functions; judgment; social interaction; and neurobehavioral effects, the VA examiners have assessed that cognitive issues such as difficulty with memory and organization of thought are attributable to the service-connected TBI, while symptoms of depression, anxiety, and difficulty interacting with others are attributable to the service-connected PTSD. See February 2021, April 2021 VA examination reports. Moreover, the examiner in February 2021 assessed no more than a severity level of "1" in any of these facets A severity level of "1" denotes a 10 percent rating under the TBI rating criteria (DC 8045). In this case the Veteran is already service-connected and assigned a separated 50 percent disability rating for PTSD, which contemplates symptoms such as impaired judgment, difficulty understanding complex commands impairment, impairment of short and long term memory (e.g., retention of only highly learned information, and forgetting to complete tasks), mild memory loss (e.g., forgetting names, directions, and recent events), impaired abstract thinking, disturbance of mood and motivation, depression, anxiety, and difficulties establishing and maintaining effective work and social relationships, etc. It is more beneficial to rate symptoms of memory, attention, and concentration deficits; judgment, social interaction, and neurobehavioral effects as a part of the service-connected psychiatric disability, which is assigned a higher 50 percent rating. Symptoms of deficits in memory, concentration, judgement, social interaction, and neurobehavioral effects may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional). A level of severity of "1" has been assigned for the orientation facet, indicating that the examiner assessed occasional disorientation to one of the four aspects (person, time, place, situation) of orientation. A higher level of severity of "2" is not warranted unless an examiner finds evidence such as occasional disorientation to two of the four aspects (person, time, place, situation) of orientation, or often disoriented to one aspect of orientation. A level of severity of "2" has been assigned for the motor activity (with intact motor and sensory system) facet, indicating motor activity that is mildly decreased or with moderate slowing due to apraxia (inability to perform previously learned motor activities). A higher level of severity of "3" is not warranted unless an examiner finds that motor activity that is moderately decreased due to apraxia. A level of severity of "1" was assigned for the visual spatial orientation facet, indicating that the examiner assessed visual spatial orientation to be mildly impaired, including occasionally getting lost in unfamiliar surroundings and having difficulty reading maps or following directions, but otherwise, having the ability to use assistive devices, such as GPS (global positioning system). As discussed above, in light of credible testimony and lay reports during the February 2021 VA examination of commonly bumping the head due to some deficits in judging the proximity or distance to objects in certain spaces, the Board has resolved reasonable doubt in the Veteran's favor in finding that a severity level of "2" is indicated in this facet. A higher level of severity of "3" is not warranted unless an examiner finds evidence of moderately severe impairment, including getting lost in familiar surroundings and inability to use assistive devices such as GPS. A level of severity of "1" has been assigned for the subjective symptoms facet, indicating three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. The VA examiner assessed subjective symptoms of intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, and hypersensitivity to sound and light. However, neither the lay nor medical evidence of record indicates more than mild limitations in activities due to dizziness and hypersensitivity to sound and light. Additionally, the Veteran is already assigned a separate 10 percent rating for tinnitus and a separate 50 percent rating for headaches. In terms of subjective symptoms of insomnia, the Veteran is also assigned a separate 50 rating for PTSD, which contemplates chronic sleep impairment. Therefore, subjective symptoms of tinnitus, headaches, and insomnia may not be the basis of a separate rating for TBI, as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. A higher level of severity of "2" is not warranted unless an there is evidence of three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships. A level of severity of "1" has been assigned for the communication facet, indicating that the examiner found evidence that comprehension or expression, or both, of either spoken language or written language that is only occasionally impaired, but the veteran can communicate complex ideas. A higher level of severity of "2" is not warranted unless the evidence supports inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time, though general ability to communicate complex ideas. (Continued on the next page) Finally, for the rating period on appeal from February 9, 2011, the evidence does not indicate that the Veteran experienced a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma; therefore, the evidence does not meet a total disability rating due to state of consciousness. For the entire rating period on appeal from February 9, 2021, the evidence shows that the TBI residuals are either more appropriately rated under separate diagnostic codes, or consideration under the various facets of the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table have resulted in a severity of "2" or a lower disability rating than that obtained when rated under a separate Diagnostic Code. As such, the preponderance of the evidence is against a rating in excess of 40 percent for TBI residuals under DC 8045. 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.124a, DC 8045. E. Choi Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.