Citation Nr: 21015251 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-39 043 DATE: March 17, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to an initial rating in excess of 20 percent for a neck disability is denied. Entitlement to an initial rating in excess of 40 percent for right upper extremity radiculopathy is denied. Entitlement to a rating in excess of 40 percent for traumatic brain injury (TBI) residuals are denied. REMANDED Entitlement to an effective date prior to May 16, 2013, for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to May 16, 2013, for the grant of Dependents’ Educational Assistance under Chapter 35 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's PTSD is productive of no more than occupational and social impairment with reduced reliability and productivity. 2. The preponderance of the evidence shows that the Veteran's neck disability has not been manifested by forward flexion of the cervical spine to 15 degrees or less; favorable ankylosis of the entire cervical spine; unfavorable ankylosis; or required bed rest prescribed by a physician. 3. The preponderance of the evidence shows the Veteran’s radiculopathy of the right upper extremity is manifested by moderate incomplete paralysis. 4. The preponderance of the evidence shows that the facets of the Veteran’s TBI residuals (other than the separately rated headaches, tinnitus, and vertigo) have not been manifested by worse than a level two (2) of impairment since May 16, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD from May 16, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an initial rating in excess of 20 percent for the neck disability from May 16, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes 5242, 5243. 3. The criteria for an initial rating in excess of 40 percent for radiculopathy of the right upper extremity from May 16, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8510. 4. The criteria for a rating in excess of 40 percent for the TBI from May 16, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1964 to February 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2014 and July 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The September 2014 rating decision granted service connection for PTSD and assigned a 50 percent rating from May 16, 2013; granted service connection for right upper extremity radiculopathy and assigned a 40 percent rating from May 16, 2013; granted service connection for a neck disability and assigned a 20 percent rating from May 16, 2013; and granted an increased, 40 percent rating, but no higher, for the TBI from May 16, 2013. The July 2016 rating decision granted entitlement to TDIU and eligibility to Dependents’ Educational Assistance from May 16, 2013. The Board remanded the matters for additional development in April 2019. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to an initial rating in excess of 50 percent for PTSD is denied. The Veteran contends that his service-connected PTSD meets the criteria for an initial rating in excess of 50 percent. The Veteran’s PTSD is rated 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders (General Formula) and provides, in pertinent part, the following criteria for evaluating PTSD: A 50 percent rating is warranted for symptoms resulting in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for symptoms resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for symptoms resulting in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. As will be explained in more detail below, the Board concludes that the Veteran’s PTSD symptoms most closely approximated the symptoms and level of impairment associated with a 50 percent rating during the period on appeal. Therefore, the criteria for an initial rating in excess of 50 percent are not met at any time from May 16, 2013. In this regard, July 2014 and October 2020 VA PTSD examination reports, VA treatment records, and the Veteran’s own statements show his PTSD symptoms include depressed mood; anxiety; weekly panic attacks; flashbacks; fatigue; nightmares; avoidance behaviors; irritable behavior and angry outbursts; an exaggerated startle response; concentration difficulties; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Despite these symptoms, some of which are associated with higher ratings, the record shows the evidence overall does not demonstrate the level of impairment associated with a 70 percent or higher schedular rating. The VA examination reports and the Veteran’s VA treatment records show he was fully oriented, had intact thought processes, conversed logically and coherently, and maintained his hygiene and personal appearance throughout the period on appeal. He also denied having hallucinations and suicidal or homicidal ideation. For instance, an April 2013 VA treatment record notes the Veteran denied having hallucinations and suicidal or homicidal ideations. His cognition was coherent and goal-directed. His memory was intact. A June 2013 VA treatment record notes the Veteran denied having suicidal thoughts. He reported he did not have any friends, but sometimes spoke with family over the phone. He also reported long-term memory difficulties, an extreme loss of interest in activities he used to enjoy, an extreme feeling of being isolated, sleep difficulties, and concentration difficulties. On evaluation, he was alert and oriented. His attention was good, and his perception accurate. His judgment appeared fair but his insight appeared poor. His speech was clear. His thought processes appeared intact. A January 2014 VA treatment record notes the Veteran was alert and fully oriented. His eye contact, outfit, and grooming were appropriate. His speech was normal. He denied having suicidal ideation or homicidal ideation. The July 2014 VA examiner noted the Veteran denied having significant relationships and indicated the PTSD symptoms included irritable behavior and angry outbursts with little or no provocation. He also had flashbacks about once a week and panic attacks about once a month. However, he was alert and cooperative during the interview and denied suicidal and homicidal ideation. An October 2015 VA treatment record notes the Veteran was appropriately groomed and fully oriented. His thoughts were linear, logical, and goal-directed. He did not report having delusions or hallucinations. He also denied suicidal or homicidal ideation. A July 2016 VA treatment record notes the Veteran reported always feeling depressed, but did not have suicidal or homicidal feelings. The October 2020 VA examiner noted the Veteran continued to have no significant relationships and opined that the level of occupational and social impairment caused by the Veteran's PTSD was best summarized by the level of impairment associated with a 70 percent rating. However, the examiner indicated the symptoms attributable to the PTSD and the Veteran’s service-connected TBI, which will be addressed below, could not be differentiated. In addition, the examiner found the Veteran to be alert and fully oriented. His attention was within normal limits, and he made good eye contact. He was appropriately attired with adequate hygiene. He was irritated but cooperative. His thought processes were coherent, linear, logical, and goal-directed. His thought content was within normal limits. His memory appeared intact on gross examination. His insight and judgment were fair. He denied any suicidal ideation, plan, or intent. Accordingly, the Board finds the evidence weighs against finding that the Veteran’s PTSD meets the criteria for a 70 percent or higher rating. While the Veteran did experience symptoms contemplated by a 70 percent rating, including impaired impulse control and an inability to establish and maintain effective relationships, the evidence does not demonstrate an overall level of impairment associated with a 70 percent or higher rating. In this regard, it is important to note that the July 2016 rating decision notes TDIU was granted in part due to the Veteran’s PTSD. And as described above, the record shows the Veteran was generally functioning satisfactorily, with routine behavior, self-care, and conversation, during the period on appeal. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment that warrants a 70 percent, or higher, schedular rating. The criteria for a rating in excess of 50 percent are not met, and the appeal must be denied. The Board emphasizes that this finding does not diminish the Veteran's reports regarding the severity of his PTSD. Entitlement to a rating in excess of 20 percent for a neck disability. The Veteran contends that his service-connected neck disability meets the criteria for an initial rating in excess of 20 percent. The Veteran's service-connected neck disability has been evaluated under Diagnostic Code 5243, which assigns ratings for intervertebral disc syndrome (IVDS) based upon incapacitating episodes. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Note (1) to the General Rating Formula provides that associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Id. IVDS may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, depending on which method results in the higher evaluation when all disabilities are combined. Under the Formula for Rating IVDS Based on Incapacitating Episodes, Diagnostic Code 5243 provides a 20 percent rating for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; and a 60 percent rating for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Based on a review of the record, the Board finds that the most probative evidence of record shows the Veteran’s neck disability has not been manifested by forward flexions of the cervical spine to 15 degrees or less; favorable ankylosis of the entire cervical spine; or required bed rest prescribed by a physician. Accordingly, the Board finds the criteria for a rating in excess of 20 percent are not met at any time during the pendency of the appeal. It is important to note that the July 2016 rating decision notes TDIU was granted in part due to the Veteran’s neck disability. In this regard, August 2014 and October 2020 VA examination reports do not suggest forward flexion of the cervical spine was limited to 15 degrees or less at any time during the period on appeal. The Board acknowledges the August 2014 VA examiner noted the Veteran reported experiencing frequent flare ups of neck pain that made movement difficult. The examiner opined pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups. In fact, he did not perform repetitive testing due to a flare-up. The examiner noted less movement than normal, incoordination, and pain on movement were contributing factors of functional loss. However, despite these considerations, the examiner opined post-test forward flexion ended at 25 degrees. The October 2020 examiner indicated forward flexion of the cervical spine was to 45 degrees and that the Veteran did not report having flare-ups of neck pain. Both examiners also noted there is not ankylosis of the cervical spine. Accordingly, the preponderance of the evidence weighs against finding the Veteran’s cervical spine flexion was limited to 15 degrees or less from May 16, 2013, to the present. The Board notes that while the August 2014 and October 2020 examiners diagnosed IVDS, the evidence does not show a physician prescribed bed rest due to the back disability. The August 2014 examiner indicated the Veteran did have incapacitating episodes, but that the total duration was of less than two weeks in the prior 12 months. Accordingly, the Board finds that the Veteran is not entitled to a higher disability rating based upon incapacitating episodes at any time throughout the period on appeal. The Veteran contends his service-connected neck disability meets the criteria for an initial rating in excess of 20 percent from May 16, 2013. In his October 2014 notice of disagreement, the Veteran contended a 60 percent rating is warranted, but he did not explain why he believed such rating was appropriate or point to evidence that shows the criteria of ratings in excess of 20 percent were met. The remaining question for the Board becomes whether the Veteran has any neurologic abnormalities associated with his service-connected neck disability other than the service-connected radiculopathy. The radiculopathy of the right upper extremity will be addressed below. The Board notes the October 2020 examiner also diagnosed radiculopathy of the left upper extremity. In error, an October 2020 rating granted service connection for peripheral neuropathy of the left lower extremity, as opposed to radiculopathy of the left arm, as secondary to the service-connected neck disability. Accordingly, the Board will not also assign a separate rating for radiculopathy of the left upper extremity. The August 2014 and October 2020 VA examiners indicated that neurological abnormalities other than the radiculopathy have not been associated with the neck disability. Therefore, separate ratings for any such disabilities are not warranted at this time. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for an initial disability rating in excess of 20 percent for the Veteran's neck disability are not met, and the appeal must be denied. 38 C.F.R. § 4.71a. Entitlement to a rating in excess of 40 percent for radiculopathy of the right upper extremity. The Veteran contends that his service-connected radiculopathy of the right upper extremity meets the criteria for an initial rating in excess of 40 percent. The Veteran’s radiculopathy of the right upper extremity is rated 40 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8510 for paralysis of the upper radicular group. Under these criteria, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis (all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected) is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Based on a review of the record, the Board finds the most probative evidence of record shows the right upper extremity radiculopathy has been manifested by moderate incomplete paralysis from May 16, 2013, to the present. Accordingly, the Board finds the criteria for a rating in excess of 40 percent are not met at any time during the pendency of the appeal. In this regard, the available medical evidence and statements from the Veteran show the symptoms were moderate in nature and did not manifest as severe incomplete paralysis or worse during this period. For instance, the August 2014 VA examiner indicated the Veteran experienced moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. The examiner opined the severity of the radiculopathy was best described as moderate. Notably, muscle strength testing of the right elbow, wrist, and fingers was normal. He did not have muscle atrophy. Reflex and sensory testing of the right upper extremity was also normal. In an October 2014 statement, the Veteran reported the radiculopathy affected his upper back and shoulder. He asserted he experienced weakness in the right arm and numbness in three fingers of the right hand. In a March 2017 statement, the Veteran reported the radiculopathy severely affected his shoulder movement. At the October 2020 VA examination, the Veteran reported he had constant numbness in both hands and intermittent pain in both arms. The examiner indicated the Veteran experienced severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. The examiner opined the severity of the radiculopathy was best described as moderate. Notably, muscle strength testing of the right elbow, wrist, and fingers was normal. He did not have muscle atrophy. Reflex testing was also normal, but a sensory exam showed decreased sensation in the right shoulder and inner/outer forearm. The sensation of the right-hand fingers was normal. Accordingly, while the Veteran experienced pain and numbness that caused functional impairments due to the radiculopathy during this period, there is no competent medical evidence that describes the level of impairment as severe. The Board finds the VA examiners’ opinions are highly probative because they were based on a review of the record and examination of the Veteran. While the Veteran reported the radiculopathy caused weakness and severely affected shoulder movement, right upper extremity reflex and strength testing was normal on both examinations. There was no muscle atrophy, and the medical evidence does not suggest his right shoulder and elbow movements have been lost or severely affected. It is important to note that nothing above suggests that the Veteran was not having problems with his radiculopathy from May 16, 2013, to the present. A 40 percent rating for the right upper extremity reflects the severity of the radiculopathy, and the Board is only addressing the degree of impairment based on the standards above, nothing more. The Board notes that while the Veteran contends an increased rating is warranted for the right upper extremity radiculopathy, he did not explain why he believed a specific rating would be appropriate or point to evidence that shows the criteria of a rating in excess of 40 percent have been met. For the reasons explained above, the Board finds the preponderance of evidence is against finding that the radiculopathy was more severe than moderate in nature and also therefore against finding that the radiculopathy of the right upper extremity warrants an increased rating at any time throughout the period on appeal. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for an initial disability rating in excess of 40 percent for the Veteran's radiculopathy are not met, and the appeal must be denied. Entitlement to a rating in excess of 40 percent for TBI residuals. The Veteran contends that his service-connected TBI meets the criteria for a rating in excess of 40 percent. The Veteran’s TBI is rated 40 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8045 for cognitive impairment from May 16, 2013. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include 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 each individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC, 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 a Traumatic Brain Injury Not Otherwise Classified" table. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." These facets are memory, attention, concentration and executive function, judgment, social interaction, orientation, motor activity, visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other subjective symptoms. Not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. In this regard, it is important for the Veteran to understand that the evaluation of a TBI is highly multifaceted. The current version of Diagnostic Code 8045 contains the following relevant notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. 38 C.F.R. § 4.124a. The Board notes a separate, 50 percent rating is assigned for headaches associated with the TBI from April 9, 2010. Individual 10 percent ratings are assigned for tinnitus and vertigo from May 6, 2013. Those ratings are not currently on appeal before the Board, and will therefore not be considered in this decision. Beyond the above, the Board must note the other claims that the Board has already addressed above, such as the PTSD. These can not form the basis of a higher rating for this problem. Based on a review of the record, the Board finds the most probative evidence of record shows the facets of the Veteran’s TBI residuals (other than the separately rated headaches, tinnitus, and vertigo) have not been manifested by worse than a level 2 of impairment since May 16, 2013. Accordingly, the Board finds the criteria for a rating in excess of 40 percent are not met at any time during the pendency of the appeal. In this regard, the available medical evidence and statements from the Veteran do not show there has been objective evidence of moderate impairment of memory, attention, concentration, or executive functions; moderately severely impaired judgment; inappropriate social interaction most or all of the time; frequent disorientation; moderately decreased motor activity due to apraxia; moderately severely impaired visual spatial orientation; 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; an inability to communicate either by spoken or written language; or a persistently altered state of consciousness. For instance, the Veteran was provided a VA TBI examination in August 2014. On evaluation, there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, which associates with a level 2 impairment of memory, attention, concentration, and executive functions under Diagnostic Code 8045. See 38 C.F.R. § 4.124a. The examiner noted the Veteran was unable to recall details of his activities of daily living in his recent past and complained of both short and long-term memory loss. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity and visual spatial orientation were normal. The examiner indicated he also had three or more subjective symptoms, including daily headaches with hypersensitivity to sound and light and tinnitus, that mildly interfered with work, instrumental activities of daily living, and relationships, which associates with a level 1 impairment of the subjective symptoms facet under Diagnostic Code 8045. Id. The TBI had no neurobehavioral effects. His comprehension or expression, or both, of either spoken language or written language is only occasionally impaired, which associates with a level 1 impairment of the communication facet under Diagnostic Code 8045. Id. He was able to communicate complex ideas. His consciousness was normal. The examiner indicated the only other TBI residuals were the service-connected headaches and neck disability. In an October 2014 statement, the Veteran reported he experienced reduced motor activity, numbness in the hands and feet, and disorientation due to the TBI. In a separate October 2014 statement, he appears to assert the TBI affected his motor activity and had neurobehavioral effects. He also indicated he had amnesia and was often disoriented. In a March 2015 statement, he contended the TBI severely affected his motor activity. In a March 2017 statement, the Veteran reported his TBI residuals included cognitive, emotional, and physical effects. The Veteran was provided a TBI VA examination in October 2020. The Veteran reported his current symptoms included headaches, tinnitus, concentration difficulties, and vertigo. He denied memory problems but was occasionally disoriented after waking up. The examiner indicated he complained of mild memory loss, noting he could not concentrate for long periods of time and was sometimes disoriented, which associates with a level 1 impairment of memory, attention, concentration, and executive functions under Diagnostic Code 8045. See 38 C.F.R. § 4.124a. His judgment was normal, and his social interaction were routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity and visual spatial orientation were normal. The examiner indicated he also had three or more subjective symptoms, including intermittent dizziness, headaches, tinnitus, frequent insomnia, and hypersensitivity to light and sound, that mildly interfered with work, instrumental activities of daily living, and relationships, which associates with a level 1 impairment of the subjective symptoms facet under Diagnostic Code 8045. Id. The TBI had no neurobehavioral effects. He was able to communicate by and comprehend spoken and written language. His consciousness was normal. The Board finds the VA examiners’ opinions are highly probative because they were based on a review of the record and examination of the Veteran. While the Veteran reported various symptoms, including frequent disorientation and amnesia, the examination reports that addressed the severity of these reported symptoms show they have not been manifested by worse than a level 2 of impairment since May 16, 2013. Notably, following examination of the Veteran, both examiners indicated the Veteran was fully oriented and had only a mild memory impairment. It is important to note that nothing above suggests that the Veteran was not having problems with his TBI from May 16, 2013, to the present. A 40 percent rating reflects the severity of the TBI residuals (other than the separately rated headaches, tinnitus, and vertigo), and the Board is only addressing the degree of impairment based on the standards above, nothing more. For the reasons explained above, the Board finds the preponderance of evidence is against finding an increased rating at any time throughout the period on appeal. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for an initial disability rating in excess of 40 percent for the Veteran's TBI residuals (other than the separately rated headaches, tinnitus, and vertigo) are not met, and the appeal must be denied. REASONS FOR REMAND Entitlement to effective date prior to May 16, 2013, for the grant of entitlement to TDIU and Dependents’ Educational Assistance under Chapter 35 is remanded. Because the Veteran can only be granted TDIU on an extraschedular basis prior to May 16, 2013, the Board remanded the matter in April 2019 for the AOJ to refer the issue to the Director of Compensation Service for initial consideration. Unfortunately, there is no indication in the record that the AOJ carried out this action. The Board sincerely regrets additional delay in adjudication of thi matter, but finds that a remand to refer the matter for extraschedular consideration is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Entitlement to an earlier effective date for the grant of Dependents’ Educational Assistance under Chapter 35 must also be remanded because the receipt of such benefit is dependent on the Veteran having a service-connected disability evaluated as total and permanent in nature. The matters are REMANDED for the following action: Refer the issue of entitlement to TDIU on an extraschedular basis prior to May 16, 2013, to the Director of Compensation Service in accordance with 38 C.F.R. § 4.16(b). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Skowronski, William 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.