Citation Nr: 21075111 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-34 560A DATE: December 17, 2021 ORDER An initial rating in excess of 20 percent for diabetes mellitus, type II, is denied. A rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is denied. A separate rating of 50 percent for migraine headaches, as due to TBI, is granted for the period on appeal. A total rating based on individual unemployability (TDIU) is granted effective June 11, 2014. Special monthly compensation based on housebound status is granted effective June 11, 2014. FINDINGS OF FACT 1. For the period on appeal, the Veteran's diabetes mellitus required only an oral hypoglycemic agent. 2. For the period on appeal, the Veteran's residuals of a TBI are shown to have a highest level of severity of Level "1" impairment for the applicable 10 facets. 3. For the period on appeal, the Veteran has had migraines occurring very frequently that are completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. The Veteran's service-connected migraine-headaches alone rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from June 11, 2014. 5. The Veteran has a single service-connected disability rated as 100 percent (TDIU based solely on migraine-headaches) and additional service-connected disabilities independently ratable disabilities at 60 percent or higher from his from June 11, 2014 onward. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for a rating in excess of 10 percent for residuals of a TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124a, DC 8045. 3. For the period on appeal, the criteria for a separate rating of 50 percent for headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.120, 4.124a, DC 8100. 4. The criteria for TDIU are met since June 6, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. 5. The criteria for SMC are met effective June 6, 2014. 38 U.S.C. § 1114(s), 5107(b); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1988 to July 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2014 and December 2016 (TDIU) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These matters have frequently been before the Board and the Court of Appeals for Veterans Claims (CAVC). In September 2019, the Board remanded these matters for additional development to comply with the January 2019 Joint Motion for Remand (JMR) addressing an increased rating for TBI and TDIU. They have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). New examinations and addendums were obtained. In November 2021, the Veteran's attorney representative withdrew their representation of the Veteran, indicating that such had concluded. The correspondence copied the Veteran. The Board accepts this motion to withdraw and as such the Veteran is currently proceeding pro se. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are not appropriate in this matter as the evidence establishes that the Veteran's service-connected disability largely remained stable and constant. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. The Veteran receives an initial rating of 20 percent for diabetes mellitus, type II under DC 7913. The Board remanded this matter in 2019 to determine whether the Veteran's disability required regulation of activities. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). In this regard, the U.S. Court of Appeals for Veterans Claims has explained that the term "regulation of activities" means that a claimant must have a medical need to avoid not only strenuous occupational activity, but also strenuous recreational activity. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical evidence is required to show that occupational and recreational activities have been restricted. Id. at 364. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. So, a higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating per 38 C.F.R. § 4.7. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor per 38 C.F.R. § 4.3. Johnson v. Wilkie, 30 Vet. App. 245 (2018). He participated in an examination in March 2019. He took Metformin by mouth twice daily. He did not require regulation of activities as part of medical management of diabetes mellitus. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than two times per month. He had no episodes of hypoglycemia, ketoacidosis, or hypoglycemic reactions over the past 12 months. He did not have progressive unintentional weight loss and loss of strength. Diabetic peripheral neuropathy was reported. The examiner also reported the functional impact would be decreased physical stamina and endurance, standing, walking and motor coordination, heavy exertion and tactile discrimination, etc. The Board, in 2019, previously found this examination to be internally inconsistent and remanded to determine whether regulation of activities was required. A September 2020 opinion stated diabetes mellitus modified the Veteran's activities and he needed to be careful with summer heat. He was unable to run, walk more than two blocks, sit for longer than two hours, and stand longer than 30 minutes. An October 2021 addendum stated the Veteran does not have limitation of activities under voluntary control as his other medical problems (obesity, hypertension and heart disease, and liver disease) affect his activities. The Veteran's medical records as well as his examinations and addendums do not show that the Veteran's diabetes mellitus requires more than one insulin injection per day. After review of the competent and probative evidence, the Board finds that an initial rating in excess of 20 percent for diabetes mellitus is not warranted. Although the Board resolves reasonable doubt in favor of the Veteran and finds the evidence to be at least in equipoise regarding whether he requires limitation of activities, there is no evidence (medical or lay testimony) that the Veteran requires more than one insulin injection per day. His medical examinations indicate that he takes an oral hypoglycemic agent. However, they also state that he does not require insulin. His medical records do not show more than one insulin injections daily, nor does the Veteran assert he takes more than one daily insulin injection. As such, the weight of the competent and probative evidence weighs against more than one insulin injection daily. Therefore, the Board finds that an initial rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 10 percent for residuals of a TBI. The Veteran, through his prior attorney representative, asserts entitlement to a separate rating of 50 percent for his migraine headaches as due to his TBI. The Veteran is currently rated at 50 percent for migraine headaches associated with TBI effective September 22, 2020 under DC 8100 and 10 percent for TBI residuals under DC 8045. An October 2021 rating decision granted the 50 percent rating for migraine headaches. Prior to the assigned 50 percent rating for migraine headaches, the Veteran received a 10 percent rating for headaches, status post head injury under DC 8045. The Court previously directed the Board to adequately consider the Veteran's statements regarding his subjective symptoms of intermittently blurry and fuzzy vision. Residuals of traumatic brain injury are evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. Traumatic brain injury residuals are rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction 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. 38 C.F.R. § 4.124a , Diagnostic Code 8045. DC 8045 is complex and comprehensive and gives much instruction to the rater, as follows: 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. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. 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, 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. The rater is to evaluate emotional/behavioral dysfunction under §4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." The rater is 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. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. 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. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms requires consideration of the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," which 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. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," 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. For the facet memory, attention, concentration, executive functions, a "0" level of impairment is assigned with no complaints of impairment. A "1" level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A "2" level is assigned with objective evidence on testing of mild impairment. A "3" level is assigned with objective evidence on testing of moderate impairment. A "total" level is assigned with objective evidence on testing of severe impairment. For the facet judgment, a "0" level of impairment is assigned for normal judgment. A "1" level is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A "2" level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. A "3" level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A "total" level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities. For the facet social interaction, a "0" level of impairment is assigned when social interaction is routinely appropriate. A "1" level is assigned when social interaction is occasionally inappropriate. A "2" level is assigned when social interaction is frequently inappropriate. A "3" level of impairment is assigned when social interaction is inappropriate most or all of the time. For the facet orientation, a "0" level of impairment is assigned when always oriented to person, time, place and situation. A "1" level is assigned when occasionally disoriented to one of the four aspects of orientation. A "2" level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A "3" level is assigned when often disoriented to two or more of the four aspects of orientation. A "total" level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the facet motor activity, (with intact motor and sensory system) a "0" level of impairment is assigned for normal motor activity. A "1" level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A "2" level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A "3" level is assigned for motor activity moderately decreased due to apraxia. A "total" level is assigned for motor activity severely decreased due to apraxia. For the facet visual spatial orientation, a "0" level of impairment is assigned when normal. A "1" level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as GPS (global positioning system). A "2" level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS. A "3" level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A "total" level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. For the facet subjective symptoms, a "0" level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A "1" level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). A "2" level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days). For the facet neurobehavioral effects, a "0" level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A "1" level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A "2" level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A "3" level is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. For the facet communication, a "0" level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A "1" level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A "2" level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A "3" level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A "total" level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs. For the facet consciousness, a "total" level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. The following notes apply to Diagnostic Code 8045. See Notes (1)-(4), 38 C.F.R. § 4.124a , Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, 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. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" 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. In September 2014, he underwent an examination for his TBI performed by a neurosurgeon. He took medication for headaches. He had complaints of mild memory loss. His judgment, social interaction, orientation, motor activity, and visual spatial orientation were normal. He had three or more subjective findings (headaches, light and sound sensitivity, nausea, and frequent insomnia) that mildly interfered with work. He did not have any neurobehavioral effects. His communication and consciousness were normal. Headache residuals were reported. His mild memory loss and three or more subjective findings that mildly interfered with work neurobehavioral effects would be assigned no higher than Level "1." He participated in examination for his TBI in December 2016 performed by a neurologist. He had complaints of mild memory loss (difficulty following a conversation, recalling recent conversations, and remembering names of new acquaintances. His judgment, social interaction, orientation, and motor activity were normal. He had mildly impaired visual spatial orientation as he would require a GPS or family to find new locations. At the time, he did not have subjective symptoms. He had one or more neurobehavioral effects that did not interfere with workplace or social interaction as he reported irritability, impulsivity, unpredictability, and aggression. His communication and consciousness were normal. Headache residuals were reported. His mild memory loss, mildly impaired visual spatial orientation, and one or more neurobehavioral effects that did not interfere with workplace or social interaction would be assigned no higher than Level "1." He had an additional examination in October 2020. TBI and headaches were reported. He reported his current symptoms as headaches, slurred speech when he is tired, and forgetting the names of objects. For memory, he had complaints of mild memory loss with forgetting words of everyday objects and difficulty with comprehension. He had normal judgment, social interaction, orientation, motor activity, and visual spatial orientation. For subjective symptoms, he had three or more subjective symptoms that mildly interfere with work such as hypersensitivity to sound, light sensitivity, daily headaches, and forgetfulness. For neurobehavioral effects, he had one or more effects that did not interfere with workplace interaction, social interaction, or both, but did not preclude them. His communication and consciousness were normal. His mild memory loss, subjective symptoms that mildly interfered with work, and one or more neurobehavioral effects that did not interfere with workplace or social interaction would be assigned no higher than Level "1." An addendum opinion in August 2021 was unable to differentiate between the Veteran's TBI symptoms and his associated diagnoses. After review of the competent and probative evidence, the Board finds that a rating in excess of 10 percent is not warranted. In this regard, the Veteran receives a 70 percent rating for his acquired psychiatric disorder which was granted by the Board in September 2019. Additionally, as discussed below, he now receives a 50 percent rating for headaches. To the extent that the Veteran has had three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of other close relationships, these symptoms are due to his headaches and he now receives a higher, separate rating for those symptoms. His subjective symptoms include hypersensitivity to sound and light, headaches, and forgetfulness. The Board acknowledges the Court's directives concerning a 2009 examination reporting dizziness, double vision, and vision blurriness. However, those symptoms are now contemplated and compensative via the now higher 50 percent rating for headaches granted below. As his symptoms overlap for subjective symptoms, granting a 40 percent rating for his subjective symptoms would be a violation of the pyramiding rule per 38 C.F.R. § 4.14. During the period on appeal, the Veteran has had at times Level "1" impairment in memory, attention, concentration, and executive functions. His subjective symptoms are contemplated by his separate rating for headaches. His visual spatial orientation would be no higher than Level "1" impairment. For neurobehavioral effects, he had Level "1" impairment. The remainder of the facets were normal as demonstrated by the above 2014, 2016, and 2020 examination reports. These examinations are probative as they looked specifically at residuals attributed to TBI and are given weight. The Veteran does not have a Level "2" impairment in any of the facets documented in the medical records or in his examinations. As such, a rating in excess of 10 percent is not warranted. Migraine Headaches As noted above, the Court directed the Board to consider the Veteran's statements regarding his vision being blurry or fuzzy, to include as reported in an August 2009 examination. Under 38 C.F.R. § 4.124a, DC 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks; a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent evaluation is appropriate in cases of characteristic prostrating attacks occurring on an average of once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, because of the successive nature of the rating criteria in DC 8100, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria in the 50 percent rating must be met in order to warrant such a rating. As discussed above with regard to the criteria for diabetes, section 4.7 is not applicable to DCs that apply successive rating criteria, such as DC 8100. See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018) (holding that criteria of DC 8100 are successive). Though Diagnostic Code 8100 does not provide a definition for "prostrating," prostration is defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007). Similarly, the term "productive of severe economic inadaptability" is also not defined in veterans' law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 44647 (2004) (stating that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating"). Additionally, "Characteristic" is "a trait, quality, or property or a group of them distinguishing an individual, group, or type." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 376 (1966). "Prostrating" means "lacking in vitality or will: powerless to rise: laid low." Id. at 1822. "Completely" is defined as "to complete degree: entirely." Id. at 465. In other words, the headaches must render the veteran entirely powerless. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). He had a VA headache examination in July 2013. He took Etodolac. He had constant head pain, sensitivity to sound, and sensory changes. His head pain lasted one to two days. The examiner reported that he did not have characteristic prostrating attacks of migraine headache or non-migraine pain, or frequent prostrating and prolonged attacks of migraine headache or non-migraine pain. The Veteran underwent an examination for his headaches in September 2014. He was diagnosed with posttraumatic headaches. He reported that he would be tired, drowsy, and have difficulty with understanding things during his headaches. He took Etodolac. He also had pulsating or throbbing head pain and pain localized to one side of the head. He had nausea, vomiting, and sensitivity to light and sound. His head pain typically lasted less than one day. The examiner reported that he did not have characteristic prostrating attacks of migraine headache or non-migraine pain, or frequent prostrating and prolonged attacks of migraine headache or non-migraine pain. The examiner reported that his headaches did not impact his ability to work. The Veteran underwent an additional examination in December 2016. He had daily pounding headaches with light and noise sensitivity. He took Etodolac. He had pulsating or throbbing head pain on both sides that worsened with physical activity. He had nausea, vomiting, and sensitivity to light and sounds. His pain typically lasted less than one day. The examiner reported that he did not have characteristic prostrating attacks of migraine headache or non-migraine pain, or frequent prostrating and prolonged attacks of migraine headache or non-migraine pain. The examiner reported that his headaches did not impact his ability to work. An August 2017 addendum stated the Veteran's headaches were not due to his TBI. He participated in another examination in September 2020. He reported severe throbbing headaches accompanied with light and noise sensitivity. He would need to lie down. They occurred four to five times per month and could last up to 12 hours. He had dizziness, his hearing would be sensitive, and he had ringing in his ears as well as balance problems. He took medication. He had pulsating or throbbing head pain on both sides. Sensitivity to light, sound, and changes in vision were reported. His head pain would last one to two days. He had characteristic prostrating attacks of migraine/non-migraine headache pain once every month. He had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. His headaches impacted his ability to work in that he was not able to run, he could only walk two blocks, sit for less than two hours, and stand for less than 30 minutes. In October 2020, VA provided another examination. He reported slurred speech when he would get tired. He took Etodolac and tramadol. He had pulsating or throbbing head pain on both sides. Sensitivity to light, sound, and changes in vision were reported. His headache pain would last less than one day. He had characteristic prostrating attacks of migraine/non-migraine headache pain once every month. The examiner reported he did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. However, the examiner also reported he was limited in activities which required focus and concentration. The Veteran's previous attorney asserted his headaches were more nearly approximated by a 50 percent rating as he had frequent daily headaches, interference with work productivity, and difficulty with work without unscheduled breaks. A 2016 private opinion stated the Veteran's headaches were frequent, severe, and disabling. His treatments were not fully effective, and it was examiner's opinion that his headaches were very frequent completely prostate and prolonged attacks productive of severe economic inadaptability. He submitted lay evidence regarding his headaches. He explained that he stopped working in June 2014 due to his headaches. He had difficulty concentrating and focusing. He would take more headache medication than was prescribed. At times, he would sit in his car and rest until his pain lessened. He continued to have daily headaches and would need to lie down in a dark room without light or sound when his medication did not work. He reported severe pain, nausea, and dizziness. He had light and sound sensitivity. After review of the competent and probative evidence, the Board finds that a rating of 50 percent is warranted. The Veteran has had symptoms that include nausea, light and sound sensitivity, and vomiting. The Board acknowledges the examinations do not show the Veteran's headaches were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability prior to September 2020. However, the Board finds the Veteran's lay statements to be competent and credible. In this regard, he has asserted that he would need to rest in his car during work. At other times, he would need to rest in a dark room to avoid light and sound. This evidence tends to support a finding of very frequent prostrating attaches with economic impacts. Additionally, the private opinion supports very frequent completely prostate and prolonged attacks productive of severe economic inadaptability. The Board finds that the combination of the Veteran's frequency of symptoms, in addition to missing time at work, is more analogous to characteristically prostrating as the Veteran requires a quiet, dark room, and there is evidence that he has missed time due to his disability. As such, the Board finds that the evidence tends to show that the Veteran's migraines are productive of severe economic adaptability. In sum, by resolving reasonable doubt in favor of the Veteran on this material issue, the Board finds that the evidence shows that he has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The benefit of the doubt has been applied as applicable to the entire period on appeal. In light of the above, after reviewing the probative, competent medical evidence and the Veteran's contentions, the Board finds that the preponderance of the evidence supports a rating of 50 percent for the period on appeal. 38 C.F.R. § 4.124a, DC 8100. 3. Entitlement to TDIU. The Veteran's prior attorney asserted in April 2019 the Veteran should be granted TDIU effective 2012 as his employment was marginal between 2012 and 2014. The attorney subsequently argued in July 2019 that entitlement to TDIU should be warranted from June 2014. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is rated at 70 percent or higher from October 30, 2012 with his service-connected major depressive disorder rated at 70 percent and TBI residuals at 10 percent. He has a combined evaluation for compensation at 100 percent from June 11, 2014 onward. Therefore, his evaluation for compensation due to his service-connected disabilities met the percentage rating standards for TDIU under 38 C.F.R. § 4.16(a) from October 30, 2012 onward. The Veteran's VA Form 21-8940 shows he last worked fulltime and became too disabled to work on June 6, 2014. He was employed in business management from April 2006 until June 2014 and noted to be working 50+ hours per week. His highest gross earning was $4,116 and he indicated missing 2 week per year due to illness. The private opinion reported he was unable to work since 2012, but acknowledges he stopped working in 2014. In support, the examiner stated that due to his headaches he had a decline in performance, missed work, and was unable to complete assigned tasks beginning in 2012. His acquired psychiatric disorder had increased occupational difficulties. A July 2013 VA psychiatric examination reported he had interpersonal conflicts with others at work. A September 2014 VA psychiatric examination reported that he had near continuous panic or depression that affected his ability to function independently, had difficulty in understanding complex commands, and had difficulty in adapting to stressful work circumstances. In this case, the record reflects that the Veteran suffered from service-connected disabilities which hindered his ability to maintain gainful employment from June 6, 2014 onward. In this matter, the Board finds that the Veteran is entitled to TDIU based solely on his migraine-headaches. The private opinion notes the complications from his migraine-headaches that included declined work performed, absences, and difficulty completing tasks. His headaches were frequent and severe, and treatment had limited success. Additionally, the Veteran submitted credible lay testimony that he stopped working in June 2014 due to his headaches. He also asserted he would sit in his car and rest until his pain lessened. During this period, he would have daily headaches and would need to lie down in a dark room without light or sound when his medication did not work. Additionally, as described in section 2 above, the Veteran is entitled to a separate rating for headaches prior over the entire period on appeal going back to June 2014. The Veteran has had an employment history of business management. He was unable to perform the duties required because of increased pain and absences from his service-connected headaches. Although it is possible the Veteran would be able to perform a physical occupation during this period on appeal, the Board finds that his service-connected headaches that hinder his abilities during a more sedentary position would also prevent a physical position. He has had to rest in his car or a dark room because of his headaches. Additionally, the Board acknowledges the contention that the Veteran's employment was marginal between 2012 and 2014. The Board recognizes he missed work due to his service-connected disabilities; however, during this time the Veteran worked full-time. As noted above, his Form 21-8940 indicates that he would miss two weeks per year due to his disabilities, but that he worked 50+ hours per week and could earn up to $4,100 per month. As such, the Board finds that the Veteran's full-time employment with an annual income significantly higher than the threshold poverty limit, did not amount to marginal employment. See Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring) (stating that where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose). As such, the evidence does not tend to a support the economic component of TDIU prior to June 2014. As such, when resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected headaches prevented him from being able to secure or follow a substantially gainful occupation from June 2014. 4. Entitlement to special monthly compensation based on being housebound. "SMC is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. §§ 1114(k)-(s)). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. § 1114(l). Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he or she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). SMC is considered an ancillary benefit and a separate claim does not need to be filed and entitlement to this type of benefit need not be asserted at the time a complete claim is filed. See 38 C.F.R. § 3.155(d)(2) ("Once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to 38 U.S.C. Chapter 35 Dependents' Educational Assistance benefits, entitlement to special monthly compensation under 38 CFR 3.350, entitlement to adaptive automobile allowance, etc."). The requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. In this case, the Veteran has been granted TDIU from June 6, 2014 based solely on his service-connected migraine-headaches. He receives a 70 percent rating for major depressive disorder from October 30, 2012 onward. He also has other service-connected disabilities (diabetic peripheral neuropathy right lower extremity at 40 percent; diabetic peripheral neuropathy left lower extremity at 40 percent; diabetic peripheral neuropathy right upper extremity at 30 percent; and diabetic peripheral neuropathy left upper extremity at 20 percent) that combine to 60 percent or greater from June 11, 2014 onward. The Veteran has a single disability rated at 100 percent disabling (via TDIU) from June 11, 2014 onward. Additionally, he has other service-connected disabilities (major depressive disorder) separate and distinct from his migraine-headaches/TDIU that are rated at greater than 60 percent. As such, he meets the criteria for entitlement to SMC(s). 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Consequently, entitlement to SMC(s) is granted effective June 6, 2014. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.