Citation Nr: 21007447 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-00 814 DATE: February 9, 2021 ORDER Entitlement to a separate compensable rating for traumatic brain injury (TBI) under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table is denied. Entitlement to an initial rating in excess of 10 percent prior to April 29, 2015, and in excess of 40 percent as of April 29, 2015, for tonic-clonic seizures with grand mal seizures is denied. Entitlement to an initial compensable rating for posttraumatic headaches is denied. FINDINGS OF FACT 1. The Veteran’s service-connected TBI is manifested by symptoms of memory loss, impaired judgment, and disorientation that are contemplated by his 100 percent rating under Diagnostic Code 8045-9400. 2. Prior to April 29, 2015, the Veteran’s tonic-clonic seizures with grand mal seizures were manifested by a confirmed diagnosis of epilepsy with a history of seizures with no seizures in the prior two years. 3. As of April 29, 2015, the Veteran’s tonic-clonic seizures with grand mal seizures were manifested by no more than one major seizure in the preceding six months and no more than two major seizures in the preceding year. 4. The Veteran’s service-connected post-traumatic headaches are manifested by daily headache pain without characteristic prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for a separate compensable rating for TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 2. The criteria for an initial rating in excess of 10 percent prior to April 29, 2015, and in excess of 40 percent as of April 29, 2015, for tonic-clonic seizures with grand mal seizures have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8910. 3. The criteria for an initial compensable rating for post-traumatic headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2018, the Veteran provided sworn testimony at a Central Office hearing before the undersigned. A transcript of that hearing has been associated with the claims file. The Board remanded these claims in July 2019. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to a separate compensable rating for TBI under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table is denied. The Veteran’s service-connected TBI has been initially evaluated as part of the 100 percent evaluation for generalized anxiety disorder (GAD) with depressed features and residuals of TBI under Diagnostic Code 8045-9400. Although his residuals were formerly separately evaluated, they have subsequently been subsumed into the 100 percent evaluation granted in the Board’s July 2019 decision. He has not been assigned a separate compensable rating under Diagnostic Code 8045. Diagnostic Code 8045, applicable to TBI, provides for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment involves decreased memory, concentration, attention, and executive functions of the brain. The term “executive functions” includes goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when such actions are not productive. Cognitive impairment is evaluated according to the table entitled “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. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table entitled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Any residual with a distinct diagnosis, however, may be evaluated under another diagnostic code, 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. When there is a diagnosis of a mental disorder, emotional and behavioral dysfunction is to be evaluated under the General Rating Formula for Mental Disorders. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. Residuals not listed above that are reported on an examination report are to be evaluated under the most appropriate diagnostic code. Each condition shall be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and each separately rated condition shall be combined under 38 C.F.R. § 4.25. 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. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 facets of TBI related to cognitive impairment and subjective symptoms. These 10 facets are as follows: (I) Memory, attention, concentration, and executive function; (II) Judgment; (III) Social interaction; (IV) Mental orientation; (V) Motor activity (impact on motor and sensory systems); (VI) Visual and spatial orientation; (VII) Subjective symptoms; (VIII) Neurobehavioral effects; (IX) Communication; and (X) Consciousness. This table provides criteria for levels of impairment for each facet, ranging from 0 to 3, and a fifth level, the highest level of impairment, labeled “total.” A 100 percent evaluation is to be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: if the highest facet is 0, then a 0 percent evaluation applies; if the highest facet is 1, then a 10 percent evaluation applies; if the highest facet is 2, then a 40 percent evaluation applies; if the highest facet is 3, then a 70 percent evaluation applies. For example, a 70 percent evaluation is to be assigned if 3 is the highest level of evaluation for any facet. 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, VA cannot assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, VA is to assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. If, however, the manifestations are clearly separable, VA is to assign a separate evaluation 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. The term “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 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. Turning to the facts in this case, the Veteran filed his underlying claim of entitlement to service connection for a TBI in March 2012, specifying that he had a seizure disorder/epilepsy and a change in mental status. He has been separately granted evaluations for generalized anxiety disorder (addressed in the Board’s July 2019 decision), seizures, and headaches (both discussed below). Accordingly, this section will only address any TBI residuals not covered by these separate evaluations. The Veteran was first examined for his TBI claim in April 2013. VA TBI Examination report, April 2013. At that time, the examiner diagnosed him with TBI with a residual seizure disorder and concluded that he had no other residuals attributable to his TBI. He complained of mild memory loss (difficult to remember conversations and recall the names of acquaintances), mild subjective symptoms including occasional lightheadedness, and mild indifference. None of these symptoms interfered with his ability to work or social interactions. All other facets of TBI were normal on examination and he scored within the normal range on a cognitive assessment test. The Veteran was next examined for his TBI claim in May 2015. VA TBI examination report, May 2015. VA TBI examination, May 2015. At that time, the examiner found objective evidence of moderate impairment in memory/attention/concentration/executive functions including short-term memory deficits, mildly impaired judgment, occasional disorientation to one of four aspects of orientation, three or more subjective symptoms (seizures, headaches, and tinnitus), and one or more neurobehavioral effects that don’t interfere with workplace or social interaction. All other facets of TBI were normal. The examiner concluded that his ongoing lability, memory deficits, and separately rated headaches, tinnitus, and seizures impacted his ability to work. The Veteran was most recently examined for his TBI in March 2020. VA-VES TBI examination, March 2020. At that time, he complained of mild memory loss without objective evidence on testing, subjective symptoms that did not interfere with work, instrumental activities of daily living, or work, family, or other relationships (headaches), and one or more neurobehavioral effects that did not interfere with workplace or social interaction (irritability and anger issues). All other facets were normal. The examiner noted that his only residuals were seizures and headaches. The evidence also includes VA treatment records (VA TRs) and lay statements from the Veteran that are consistent with the VA and VA contract examinations. Significantly, none of the VA TRs or statements indicate worse symptoms than what is reflected in the VA contract examinations. Upon review of the evidence of record, discussed above, the Board finds a separate compensable rating is not warranted under Diagnostic Code 8045 at any time during the appeals period. With regard to the facets of social interaction, motor activity, visual spatial orientation, communication, and consciousness, a severity level of “0” has been assigned for the entire period on appeal. Each of the VA/VA contract examiners found routinely appropriate social interaction, normal motor activity, normal visual spatial orientation, ability to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language, and normal consciousness. With regards to the facet of memory/attention/concentration/executive function, the VA/VA contract examiners found that the Veteran ranged from mild memory loss to objective evidence on testing of moderate impairment. These findings are consistent with severity levels of “1” and “3.” However, symptoms of memory loss are specifically contemplated in the Veteran’s 100 percent rating under Diagnostic Code 8045-9400 which has been in effect during the entire appeals period. As such, a separate rating cannot be assigned based on memory loss without violating the above-mentioned prohibition on pyramiding. 38 C.F.R. § 4.14. With regards to the facet of judgment, the VA/VA contract examiners found that the Veteran ranged from normal to mildly impaired judgment. These findings are consistent with severity levels of “0” and “1.” However, deficiencies in judgment are specifically contemplated in the Veteran’s 100 percent rating under Diagnostic Code 8045-9400 which has been in effect during the entire appeals period. As such, a separate rating cannot be assigned based on impaired judgment without violating the above-mentioned prohibition on pyramiding. With regards to the facet of orientation, the VA/VA contract examiners found that the Veteran ranged from normal orientation to occasional disorientation to one of four aspects of orientation. These findings are consistent with severity levels of “0” and “1.” However, disorientation to time and place are specifically contemplated in the Veteran’s 100 percent rating under Diagnostic Code 8045-9400 which has been in effect during the entire appeals period. As such, a separate rating cannot be assigned based on disorientation without violating the above-mentioned prohibition on pyramiding. As the Veteran’s symptoms of TBI-related cognitive impairment have been contemplated by his 100 percent rating for generalized anxiety disorder, there is no basis for a separate compensable rating under Diagnostic Code 8045. His symptoms are currently specifically included in the 100 percent rating under Diagnostic Code 8045-9400 and granting a separate evaluation would compensate the Veteran twice for the same symptoms. See 38 C.F.R. § 4.14. Accordingly, his claim for a separate compensable evaluation for residuals of a TBI based on the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table must be denied. Further, there is no evidence of any residuals of a TBI other than those discussed below and in the Board’s prior decision. A higher rating or additional separate rating is not warranted under any other relevant diagnostic code. The Board has also considered the Veteran’s general lay statements that he should be entitled to a higher rating. Notably the Veteran, as a lay person, is competent to describe observable symptoms. However, laypersons do not have the competence to render an opinion as to the level of severity of residuals of TBI. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a separate compensable rating under Diagnostic Code 8045, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to an initial rating in excess of 10 percent prior to April 29, 2015, and in excess of 40 percent as of April 29, 2015, for tonic-clonic seizures with grand mal seizures The Veteran’s service-connected seizures have been initially evaluated as 10 percent disabling prior to April 29, 2015, and 40 percent disabling as of April 29, 2015, under Diagnostic Code 8910. Diagnostic Code 8910 for grand mal seizures is rated under the General Rating Formula for Major and Minor Epileptic Seizures. The General Rating Formula provides a 10 percent rating for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is assigned for at least 1 major seizure in the last 2 years; or at least two minor seizures in the past 6 months. A 40 percent rating is assigned for at least 1 major seizure in the past 6 months or 2 in the last year; or averaging at least 5-8 minor seizures weekly. A 60 percent rating is assigned for averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week. An 80 percent rating is assigned for averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent rating is assigned for averaging at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8910. When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. 38 C.F.R. § 4.124a, Diagnostic Code 8910, Note (1). In the presence of major and minor seizures, rate the predominating type. 38 C.F.R. § 4.124a, Diagnostic Code 8910, Note (2). There will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8910, Note (3). When there is doubt as to the true nature of epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. The Veteran was first examined for his seizures in April 2013. VA TBI Examination, April 2013. At that time, the Veteran reported taking continuous medication (Dilantin and Keppra) with no other treatment. He indicated that his most recent seizure activity was in approximately June 2010 with no major seizures in the past 2 years. The examiner diagnosed him with tonic-clonic seizures with grand mal seizure. He indicated that this was a confirmed diagnosis with seizures witnessed by the Veteran’s girlfriend, sister, and others and that it was an important cause of his inability to work as a truck driver. The Veteran was next examined for his seizures in April 2015. VA Seizure Disorder (Epilepsy) examination, April 2015. At that time, the Veteran reported using continuous medication to control his seizures (Dilantin and Keppra). He had a confirmed diagnosis with a history of witnessed seizures. The examiner noted that he had at least two major seizures in the past year and none in the past 6 months with a normal neurological examination and no impact on his ability to work. The Veteran was most recently examined for his seizures in March 2020. VA-VES Seizure Disorders (Epilepsy) examination, March 2020. At that time, he reported that his seizures were under control due to medication and that his last seizure was a few years ago. He reported taking Keppra twice per day with no other treatment. The examiner concluded that he had an EEG-confirmed diagnosis with his most recent seizure activity in 2016 and no minor seizures. The medical evidence also includes VA TRs noting the Veteran’s seizure activity. These records are consistent with the VA/VA contract examinations of record. Significantly, he denied any seizures at several VA appointments in April 2018, October 2018, April 2019, August 2019, and February 2020. See VA TRs, April 2018-February 2020. The Board notes that the Veteran reported possibly experiencing three to four seizures in the preceding year at his April 2012 VA psychiatric examination. However, the Veteran also stated that he could not tell how many seizures he has had. As his reports were inconsistent and contradicted by the findings of the April 2013 VA examiner who was specifically examining his seizure disorder, the Board finds that these reports to the psychiatric examiner are not adequate to grant an increased rating. The Veteran also provided hearing testimony and written statements that are consistent with the reports of seizure frequency noted in the VA/VA contract examinations and VA TRs. Upon review of the evidence of record, discussed above, there is no basis for an initial rating in excess of 10 percent prior to April 29, 2015 or in excess of April 29, 2015 thereafter. From the March 2012 grant of service connection until April 28, 2015, there is no evidence that the Veteran had any major or minor seizures. Significantly, he denied any major seizures in the year prior to his April 2013 VA examination and denied any minor seizures at any time. Without evidence of at least one major seizure in the preceding two years, a higher rating of 20 percent cannot be granted. From April 29, 2015 to the present, the evidence shows no more than two seizures in the last year. At his April 2015 VA examination, the Veteran reported two major seizures in the past year with none in the preceding 6 months. At his next VA examination, he denied any seizures since approximately June 2016. Without evidence of at least one major seizure in 4 months over the past year, a higher rating of 60 percent cannot be granted. The Board notes that the most recent VA examination does not show a frequency of seizures to warrant his currently assigned 40 percent rating. However, the Board will not disturb this rating. The Board has also considered the Veteran’s general lay statements that he should be entitled to a higher rating. Notably the Veteran, as a lay person, is competent to describe observable symptoms. However, there is no lay evidence from the Veteran attesting to more frequent seizures than he is currently being compensated for. A higher rating cannot be assigned based on lay statements. See Kahana, supra. There is also no indication in the medical evidence that the Veteran’s service connected seizures warranted other than the currently assigned 10 percent and 40 percent disability ratings at any point during the appeals period. The assignment of additional staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that the claim of entitlement to an initial rating in excess of 10 percent prior to April 29, 2015, or in excess of 40 percent as of April 29, 2015, for tonic-clonic seizures with grand mal seizures. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 3. Entitlement to an initial compensable rating for posttraumatic headaches The Veteran’s service-connected posttraumatic headaches have been initially evaluated as 0 percent disabling under Diagnostic Code 8100. Under Diagnostic Code 8100, a 0 percent evaluation is assigned for migraines with less frequent attacks. A 10 percent evaluation is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is assigned for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). However, the Board notes that, according to Webster’s New College Dictionary 909 (3d ed. 2008), “prostration” is defined as “complete exhaustion.” Similarly, Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007) defines “prostration” as “extreme exhaustion or powerlessness.” The Veteran was first examined for his headaches in May 2015. VA Headaches examination, May 2015. At that time, he complained of constant head pain on both sides of the head that lasted less than one day with no associated non-headache symptoms. He treated his headaches with Excedrin. The examiner diagnosed him with tension headaches (ongoing daily frontal headaches) and concluded that he had no characteristic prostrating attacks. The Veteran was next examined for his headaches in October 2017. VA-QTC Headaches examination, October 2017. At that time, he complained of daily pulsating and throbbing head pain on the left side of his head that wakes him up at night. He indicated that he took Excedrin for the pain and it resolved within 40 minutes. He also reported non-headache symptoms including nausea, sensitivity to sound, and changes in vision (a little bit of blurry vision). The examiner diagnosed him with post-traumatic headaches and opined that it interfered with his ability to concentrate. The Veteran was most recently examined for his headaches in March 2020. VA-VES Headaches examination, March 2020. At that time, he complained of headaches two to three times per week, lasting approximately one hour until relieved by medication. He rated the pain as 8 out of 10 and indicated that it was on both sides of his head and that he had associated sensitivity to sound. The examiner diagnosed him with post-traumatic headaches and concluded that he did not experience characteristic prostrating attacks of migraine or non-migraine headache pain or very prostrating and prolonged attacks of migraine or non-migraine headache pain productive of severe economic inadaptability. He opined that it would affect the Veteran’s ability to work by making it difficult to perform complex skills. The medical evidence also includes VA TRs noting the Veteran’s headaches. These records are consistent with the VA/VA contract examinations of record. Significantly, there are no records that suggest that the Veteran experiences characteristic prostrating attacks. The Veteran also provided hearing testimony and written statements that are consistent with the reports of headaches noted in the VA/VA contract examinations and VA TRs. Upon review of the evidence of record, discussed above, there is no basis for an initial compensable rating for the Veteran’s headaches. See May 2015, October 2017, and March 2020 VA examinations. None of the evidence suggests that the Veteran experiences characteristic prostrating attacks. His episodes of headache pain are resolved with medication and do not limit his ability to function. Although the headaches may limit his ability to perform complex tasks or concentrate at work, they do not prevent him from attending work. While the Board recognizes the Veteran’s frequent headaches, the evidence simply does not show that these headaches rise to the level of characteristic prostrating attacks to warrant a compensable rating under Diagnostic Code 8100. The Board has also considered the Veteran’s general lay statements that he should be entitled to a higher rating. Notably the Veteran, as a lay person, is competent to describe observable symptoms. However, there is no lay evidence from the Veteran attesting to prostrating headache attacks. A higher rating cannot be assigned based on lay statements. See Kahana, supra. There is also no indication in the medical evidence that the Veteran’s service connected headaches warranted other than the currently assigned 0 percent disability rating at any point during the appeals period. The assignment of staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that the claim of entitlement to an initial compensable rating for post-traumatic headaches. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.