Citation Nr: 21022695 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-03 371 DATE: April 19, 2021 ORDER Entitlement to a separate rating of 30 percent, but no higher, for post-concussion headaches, from December 12, 2011, to November 29, 2018, is granted. Entitlement to a rating in excess of 50 for post-concussion headaches from November 30, 2018, is denied. Entitlement to a separate rating of 10 percent, but no higher, for traumatic brain injury (TBI), from December 12, 2011, and 40 percent, but no higher, from November 2, 2020, is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to August 6, 2010, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthrosis, right knee with limitation of flexion, prior to April 16, 2018, is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative arthrosis, left knee with limitation of flexion, prior to August 15, 2011, in excess of 20 percent prior to December 12, 2011, and in excess of 30 percent prior to May 22, 2017, is remanded. FINDINGS OF FACT 1. From December 12, 2011 to November 29, 2018, the Veteran's service-connected post-concussion headaches were prostrating and occurring on an average of at least once a month, but not productive of severe economic inadaptability. 2. From November 30, 2018, the Veteran's service-connected post-concussion headaches have manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From December 12, 2011, the Veteran’s service-connected TBI has been manifested by no worse than level “1” impairment for any of the facets according to the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. 4. From November 2, 2020, the Veteran’s service-connected TBI has been manifested by no worse than level “2” impairment for any of the facets according to the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. 5. The Veteran has maintained substantially gainful employment prior to August 6, 2010. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for post-concussion headaches from December 12, 2011 to November 29, 2018, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The criteria for a 50 percent rating, but no higher, for post-concussion headaches from November 30, 2018, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 3. From December 12, 2011, the criteria for a disability rating of 10 percent, but no higher, for service-connected TBI have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 4. From November 2, 2020, the criteria for a disability rating of 40 percent, but no higher, for service-connected TBI have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 5. The criteria for entitlement to a TDIU prior to August 6, 2010 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to March 1978 and from February 1980 to February 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge during a February 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in July 2018 and September 2020. The matter has returned to the Board for adjudication. By way of history, in an April 2003 rating decision, the Veteran was granted service connection with an evaluation of 30 percent for post-concussion headaches effective April 26, 2002 under Diagnostic Code 8045-8100. The 30 percent evaluation was continued in July 2004, November 2004, and April 2005 rating decisions. In an October 2008 rating decision, the RO decreased the 30 percent evaluation for headaches to 10 percent effective February 1, 2009. In June 2009, the RO increased the evaluation for post-concussion headaches/TBI to 40 percent, effective October 23, 2008, the date of the law change for ratings of TBI. The 40 percent was assigned for a level of severity of “2” for TBI residuals. The RO combined the ratings for the service-connected post-concussion headaches and TBI as one evaluation. The 40 percent evaluation was continued in a May 2012 rating decision. The RO noted that the Veteran’s TBI warranted a 10 percent evaluation based on a level of severity of “1” and found that the Veteran’s headache disability warranted a 30 percent evaluation. The RO stated that instead of separating the evaluations for TBI and headaches, it has continued to combine the two conditions. The RO proposed to decrease the 40 percent evaluation for post-concussion headaches/TBI to a non-compensable evaluation in a June 2014 rating decision based on a level of severity of “0” for TBI residuals and no compensable symptoms found for headaches. In September 2014, the RO reduced the evaluation to 0 percent effective December 1, 2014. A December 2014 rating decision found that the effective date of the reduction was improper and changed the 0 percent evaluation effective date to January 1, 2015. The evaluation was increased to 30 percent effective June 1, 2016 as the RO found that the Veteran’s headaches worsened. In a June 2020 rating decision, the RO increased the 30 percent evaluation for post-concussion headaches/TBI to 50 percent effective November 30, 2018. Increased Ratings Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Parts 4. When rating a service-connected disability, the entire history must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board must consider entitlement to "staged" ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Hyphenated codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional diagnostic code is shown after a hyphen. 38 C.F.R. § 4.27. Rating Reductions The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after VA has met certain procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Substantively, the criteria governing rating reductions for service-connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings that have been continued for five years or more. In such cases, the regulation prescribes more stringent criteria that must be met before a rating may be reduced. Where a disability rating has continued at the same level for less than five years, as in this case, the analysis is conducted under 38 C.F.R. § 3.344(c), which provides that reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. VA is also required to comply with several general regulations applicable to all cases involving the evaluation of a disability, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.13, 4.14; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a service-connected disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000). 1. Increased Rating for TBI As previously discussed above, the 40 percent evaluation for post-concussion headaches/TBI was continued in a May 2012 rating decision. The RO noted that the Veteran’s TBI warranted a 10 percent evaluation based on a level of severity of “1” and found that the Veteran’s headache disability warranted a 30 percent evaluation. The RO stated that instead of separating the evaluations for TBI and headaches, they have continued to combine the two conditions. In this regard, the Board finds that from December 12, 2011 to November 1, 2020, the Veteran is entitled to a separate 10 percent rating for his TBI under Diagnostic Code 8045. From November 2, 2020, a 40 percent rating is warranted. The Board finds it is more beneficial to the Veteran to be assigned separate ratings for his headaches and TBI rather than having one combined rating as the disabilities can be clearly separated from one another. Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from traumatic brain injury 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, Diagnostic Code 8045. 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. Cognitive impairment is to be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Emotional/behavioral dysfunction is to be evaluated 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.” Id. Subjective symptoms may be the only residual of traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of traumatic brain injury are evaluated, 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 Traumatic Brain Injury Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified” table. 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Under Diagnostic Code 8045, the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of traumatic brain injury 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 4th level, the highest level of impairment, labeled “total.” A 100 percent evaluation will be assigned it “total” is the level of evaluation for one or more facets. If no facet is evaluated at “total,” the overall evaluation is based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and, 3 = 70 percent. However, not every facet has every level of severity. The “subjective symptoms” facet, for example, provides for an impairment level of 0, 1, or 2, which corresponds to 0 percent; 10 percent; and 40 percent, respectively. Notes are included with 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 Traumatic Brain Injury Not Otherwise Classified” with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. 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 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. Turning to the evidence of record, the Veteran was afforded a VA examination in March 2012. The Veteran was diagnosed with a TBI. On examination, there was a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or findings words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. His judgment was normal, social interaction was routinely appropriate, and he was always oriented to person, time place, and situation. Motor activity and visual spatial orientation were both described as normal. The Veteran had subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. There were no neurobehavioral effects. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. The VA examiner noted that the Veteran had subjective symptoms of migraine headaches. As previously noted, a June 2014 rating decision proposed to decrease the Veteran’s rating for post-concussion headaches/TBI from 40 (a combined 10 percent for TBI and 30 percent for post-concussion headaches) percent to 0 percent disabling. The RO based the proposed reduction on the findings from the June 2014 VA TBI examination. The Veteran’s rating was reduced to 0 percent from December 1, 2014 in a September 2014 rating decision. A December 2014 rating decision found that reduction date was warranted from January 1, 2015. The June 2014 VA TBI examination showed that the Veteran did not have complaints of impairment of memory, attention, concentration, or executive functions. His judgment was normal. Social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. The Veteran’s motor activity and visual spatial orientation was normal. He did not have subjective symptoms that interfered with work; instrumental activities of daily living; or work, family, or other close relationships. There were no neurobehavioral effects and he was able to communicate by spoken and written language. The Veteran had normal consciousness. The examiner indicated that the Veteran had headaches. However, in a July 2014 correspondence, the Veteran’s primary care physician, Dr. M.T., stated that the Veteran reported having ongoing memory loss that can be attributed to his TBI and its sequela. In private treatment records from Calera Family Health, the Veteran reported having on and off memory problems from January 2014 to March 2018. In a March 2018 correspondence, Dr. M.T. stated that the Veteran has consistently complained of memory loss. The Board finds that the reduction of the 10 percent to 0 percent rating was improper for the service-connected TBI. Upon consideration of the foregoing evidence, and a comparison of the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 10 percent disability rating versus the demonstrated symptomatology demonstrated since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s condition which justifies the effectuated reduction of the disability rating from 10 percent to 0 percent. The evidence of record shows that the Veteran continued to complain of memory loss related to his TBI and the Veteran’s memory did not sustain sufficient improvement to warrant the level of “0” such that reduction to 0 percent was warranted. The September 2020 Board decision remanded the issue for a new examination as it was unclear whether the Veteran’s TBI residuals included additional disability, other than his headache disability and to clarify whether the Veteran’s memory loss is a symptom of his TBI residuals. The Veteran was examined for TBI in November 2020. The Veteran had a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing described as forgetful, forgets names, appointments, needs reminders, misplacing items, and problems with attention and concentration. His judgment was normal. The Veteran had routinely appropriate social interaction. He was always oriented to person, time, place, and situation. His motor activity was described as normal. The Veteran’s visual spatial orientation was mildly impaired. He had three or more subjective symptoms that mildly interfere with work. The VA examiner described his subjective symptoms as moderate headaches, hypersensitivity to sound, and hypersensitivity to light. The Board notes that the headaches have been granted a separate rating as will be discussed later in this decision. The Veteran also had one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interactions, or both but do not preclude them, described by the examiner as irritability, impulsivity, unpredictability, lack of motion, apathy, moodiness, lack of cooperation, and inflexibility. He was able to communicate by spoken and written language and to comprehend spoken and written language. The Veteran’s consciousness was normal. The November 2020 VA examiner also specifically addressed the Veteran’s memory loss and stated that the Veteran has a mild memory loss that is a symptom of TBI. The Board points out that while on the examination the VA examiner checked the box that the Veteran had a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing, she noted in the medical opinion that “Today Montreal Cognitive Assessment (MOCA) score 21/30 with objective evidence of mild memory and attention/concentration impairment.” Thus, the Board finds that the level of severity for memory, attention, concentration, and executive functioning should be assessed as a level “2” for objective evidence on testing of mild impairment of memory, attention, concentration, or executive function resulting in mild functional impairment. She also noted that the Veteran has been diagnosed with posttraumatic stress disorder (PTSD) and that it is more likely that all emotional/behavioral signs and symptoms are related to PTSD and not related to TBI. Thus, with regards to the specific criteria facets under Diagnostic Code 8045, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Specified, the Board finds the following: (1) Memory, Attention, Concentration, Executive Functioning: From December 12, 2011, the Veteran is assessed a “1” for some complaints of memory deficiencies, cognitive dysfunction and executive functions, but without objective evidence on testing, as reflected in the March 2012 and June 2014 VA TBI examinations, which is consistent with other objective medical evidence of record. The Board finds the objective evaluations by private and VA clinicians to be the most probative evidence of record in this regard. Accordingly, from December 12, 2011 the Board finds that the evidence of record warrants a “1” for this TBI facet. Prior to November 2, 2020, a higher severity of “2” is not warranted unless there is evidence objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. Although the Veteran is competent to describe memory and cognitive symptoms, he has personally experienced, See Layno v. Brown, 6 Vet. App. 465 (1994), he has not been shown to be competent to objectively diagnose memory deficiencies, cognitive dysfunctions, or impairment of executive functions. Thus, the Board is unable to assign a higher level of severity for this facet before November 2, 2020. However, from November 2, 2020, the Board finds that the evidence demonstrates a level of “2” for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment based on objective evidence from MOCA testing results. Accordingly, a 40 percent rating is warranted for the Veteran's service connected TBI from November 2, 2020. A higher severity of “3” is not warranted unless there is objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Here, the objective evidence shows that the impairment of memory loss was mild and a higher level of severity for this facet is not warranted. (2) Judgment: The Board finds that the Veteran’s judgment was normal throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the Veteran demonstrates mildly impaired judgment, including for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. At no time throughout the appeal period has the Veteran demonstrated mildly impaired judgment. Thus, the Board is unable to assign a higher level of severity for this facet. (3) Social Interaction: The Board finds that the Veteran is routinely able to socially interact appropriately throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the Veteran demonstrates social interaction that is occasionally inappropriate. At no time throughout the appeal period is the Veteran deemed to be even slightly inappropriate in his social interactions by any treating physician or examiner; nor does the Veteran assert that he has any inappropriate behavior during the appeal period. The Board is therefore unable to assign a higher level of severity for this facet. (4) Orientation: The Board finds that the Veteran’s orientation was oriented to person, time, place, and situation throughout the appeal period as reflected in the medical records. Such corresponds to a “0” score for this facet and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless there is evidence of being occasionally disoriented to one of the four aspects (person, time, place, and situation) of orientation. At no time throughout the rating period on appeal is the Veteran deemed to have been occasionally disoriented to one of the four aspects of orientation. Thus, the Board cannot assign a higher level of severity for this facet. (5) Motor Activity: The Board finds that the Veteran’s motor activity was normal throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the evidence demonstrates that his motor activity is mostly normal, but mildly slowed at times due to apraxia. The evidence does not indicate that the Veteran’s motor activity throughout the appeal period has met this facet. Thus, the Board is unable to assign a higher level of severity for this facet. (6) Visual Spatial Orientation: The Board finds that the Veteran’s visual spatial orientation was noted to be mildly impaired at the November 2020 VA TBI examination. Such corresponds to a “1” score for this facet but does not result in an evaluation in excess of that currently assigned. A higher level of severity of “2” is not warranted unless the evidence demonstrates moderate impairment, such as usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance and has difficulty using assistive devices such as GPS (global positioning system). The above record does not support a finding that the Veteran has been moderately impaired in his visual spatial orientation. Thus, the Board is unable to assign a higher level of severity for this facet. (7) Subjective Symptoms: The Board finds that three or more of the Veteran’s subjective symptoms mildly interfere with work, instrumental activities of daily living, or work, family or other close relationships throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “1” score for this facet and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “2” is not warranted unless there are three or more subjective symptoms that moderately interfere with those areas of the Veteran’s functioning, such as marked fatigability, blurred or double vision, or headaches requiring rest periods during most days. There is no evidence the Veteran had marked fatigability or trouble with vision due to TBI, and therefore, do not meet the level of severity for this facet. The separate rating for headaches will be discussed later in this decision. (8) Neurobehavioral Effects: The Board finds that the Veteran’s neurobehavioral effects are related to his PTSD and not his TBI residuals. The November 2020 VA examiner noted that the Veteran’s emotional/behavioral signs and symptoms are related to his service-connected PTSD and not related to TBI. Therefore, there no level of severity for no neurobehavioral effects is assigned. A severity of “0” is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. A higher level of “1” is not warranted unless there are one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. The Board is unable to assign a score of “1” for this facet. (9) Communication: The Board finds that the Veteran was able to communicate by spoken and written language (written communication) and to comprehend spoken and written language. Such corresponds to a “0” score for this facet and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless comprehension or expression, or both, of either spoken language or written language is only occasionally impaired and can communicate complex ideas. The evidence showed that throughout the appeal period, the Board was able to communicate and comprehend spoken and written language. Thus, the Board is unable to assign a higher level of severity for this facet. (10) Consciousness: The Board finds that the Veteran’s consciousness was normal throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “Total” is not warranted unless there is evidence of persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. The evidence of record demonstrates that the Veteran is not in a persistently altered state of consciousness throughout the appeal period. Thus, the Board is unable to assign a higher level of severity for this facet. Consequently, from December 12, 2011, the Veteran has been assigned a “1” as the highest severity level with regard to any of the ten facets, as discussed above. Such an evaluation is commensurate to a 10 percent evaluation under Diagnostic Code 8045. See 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8045. A higher rating would be warranted if any of the ten facets showed level 2 impairment; however, such impairment has not been shown prior to November 2, 2020. From November 2, 2020, the evidence showed that the Veteran has been assigned a “2” as the highest severity level with regard to any of the ten facets, as discussed above. As the preponderance of the evidence is against the award of an increased evaluation in excess of 10 percent from December 12, 2011, percent and in excess of 40 percent from November 2, 2020, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Increased Rating for Post-Concussion Headaches Pursuant to Diagnostic Code 8100, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims (Court). The Board notes, however, that DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), defines "prostration" as "extreme exhaustion or powerlessness." Similarly, WEBSTER'S II NEW COLLEGE DICTIONARY 889 (3rd Ed. 2001), defines the term as "physically or emotionally exhausted; INCAPACITATED." The term "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The Court has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as that would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum capable of producing "severe" economic inadaptability. Additionally, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of his disability. Id. As previously noted, the Board discussed that separating the evaluations for his service-connected post-concussion headaches and TBI would be more beneficial to the Veteran. Here, the Board resolves all reasonable doubt in the Veteran’s favor and finds that the Veteran’s headaches disability warrants a separate 30 percent evaluation from the date of the claim of increase, December 12, 2011, to November 29, 2018. The May 2012 rating decision found that the Veteran’s headaches warranted a 30 percent evaluation based on characteristic prostrating attacks occurring on an average once a month over the last several months. It also found that the Veteran’s TBI would warrant a 10 percent evaluation based on the level of severity of “1.” The RO combined the 30 percent evaluation for the headaches and 10 percent for the TBI and continued the 40 percent evaluation. The Veteran was afforded a VA examination in March 2012. The Veteran had typical head pain of less than one day located on the left side of his head. The examiner noted that the Veteran had characteristic prostrating attacks of migraine headache pain more frequently than once per month. The Veteran reported having headaches twice weekly. The VA examiner found that the Veteran’s headache condition does not impact his ability to work. As noted above, the RO decreased the rating for headaches/TBI to a noncompensable evaluation in a December 2014 rating decision, effective January 1, 2015. The Veteran was examined for his headaches in June 2014. The Veteran had symptoms of headache pain, pulsating or throbbing head pain, and pain on both sides of the head. The headaches typically lasted less than one day. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine pain and that his headache condition did not impact his ability to work. The VA examiner indicated that the Veteran’s VA treatment records did not indicate ongoing headache issues or treatment and that the Veteran was working until three years ago and had to stop due to back pain, not due to his headaches. However, during the period where the Veteran’s disability evaluation was reduced to a noncompensable evaluation, there is evidence that the Veteran continued to experience prostrating headaches. In his February 2015 VA treatment records, headaches were still noted in the problem list. In August 2015, the Veteran was seen for headaches and he reported having them daily. He described the headaches as throbbing and may last all day. See August 2015 VA treatment record. In an October 2015 VA treatment record, the Veteran reported that his current stressors include his migraines. The Veteran stated that he often wakes up with a headache. See December 2015 VA treatment record. In a January 2016 VA treatment record, the Veteran reported having frequent migraines and was recommended to use medications regularly. Also, in January 2016, the Veteran informed the VA that he wanted his primary care physician to know that he is still having bad headaches and that he would like a consultation. See January 2016 VA treatment record. The Veteran also reported that he had sharp, throbbing headaches, usually on the right side that occurs five times a week, lasting for several hours. He takes Tylenol and it abates some but does not go away. See March 2016 VA treatment record. The Board finds that the reduction of the 30 percent to 0 percent rating was improper for the service-connected post-concussion headaches. Upon consideration of the foregoing evidence, and a comparison of the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 30 percent disability rating versus the demonstrated symptomatology demonstrated since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s condition which justifies the effectuated reduction of the disability rating from 30 percent to 0 percent. The evidence of record shows that the Veteran continued to complain of headaches that showed characteristic prostrating attacks occurring on an average once a month over the last several months. The RO increased the Veteran’s headache disability evaluation to 30 percent from June 1, 2016, the date of a private headache examination. The Veteran’s private physician, Dr. M.T., performed a headache examination in June 2016. The Veteran had constant throbbing head pain on both sides of the head. The Veteran did not have characteristic prostrating attacks of migraine head pain, but he did not have prostrating attacks of non-migraine head pain more frequently than once per month. Dr. M.T. noted that the constant nature of the pain is inconsistent with migraine headaches and more consistent with post-traumatic headaches. The physician indicated that the headache condition impacts his ability to work but did not offer any rationale for this finding. In November 2018, the Veteran was examined for his headaches. The Veteran reported that his headaches have gotten worse over the last eighteen months in both frequency and severity. The Veteran experienced constant head pain, pulsating or throbbing head pain on both sides of the head, with pain worsening with physical activity. The headache pain lasted more than two days. The VA examiner indicated that the Veteran has very prostrating and prolonged attacks of migraine/non-migraine pain once every month and that it is productive of severe economic inadaptability. The Veteran was afforded another VA examination in November 2020. The Veteran reported constant head pain that pulsates and throbs. The duration of the head pain lasted for one to two days. The VA examiner found that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain productive of severe economic inadaptability and that he is not able to perform any occupational tasks during severe headache episodes. Therefore, based on the evidence above, the Board finds that a 30 percent evaluation is warranted from the date of the claim of increase, December 12, 2011, to November 29, 2018. There is no evidence that the Veteran's headaches produced severe economic inadaptability during this time. The Board notes that the Veteran stopped working in August 2010. The VA examiners stated that the Veteran stopped working due to his back condition. However, had the Veteran been working, the severity of his headaches does not show that the Veteran's headaches produced severe economic inadaptability during this time. The 30 percent rating compensates him for impairment in earning capacity due to post-concussion headaches. A June 2020 rating decision increased the Veteran’s headache evaluation to 50 percent, effective November 30, 2018, the date of the VA examination that showed an increase was warranted. The December 2018 VA examiner indicated that the Veteran has very prostrating and prolonged attacks of migraine/non-migraine pain once every month and that is productive of severe economic inadaptability. A 50 percent rating is the highest rating for migraines under Diagnostic Code 8100. 3. TDIU prior to August 6, 2010 By way of history, in a November 2004 rating decision, the Veteran was denied entitlement to a TDIU as he did not meet the schedular requirements. The Veteran did not appeal this decision. He applied for a TDIU again December 2011 and was denied entitlement to a TDIU by way of the May 2012 rating decision. The Veteran was granted entitlement to a TDIU from the date after he last worked, August 6, 2010 in a November 2020 rating decision. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, it is VA's established policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) from July 28, 2008. He is combined to be 80 percent disabling for his PTSD rated at 70 percent, left knee degenerative arthrosis rated at 10 percent, post-concussion headaches/TBI rated at 30 percent, and residuals of injury to the left upper gastrocnemius muscle rated at 20 percent. The Veteran filed a claim for a TDIU on VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received by the VA on December 12, 2011. The Veteran indicated that his service-connected PTSD, TBI, and knee disabilities prevented him from security or following any substantially gainful occupation. The Veteran noted that he last worked in May 2004 as a driver. In July 2014, the Veteran filed another VA Form 21-8940, and stated that he last worked full time in November 2011 as a security officer and that he became too disabled to work in November 2011. The RO received another VA Form 21-8940 from the Veteran in January 2017 and November 2018. The Veteran noted that he last worked August 15, 2014 to September 1, 2014 as a security officer, but his last full-time employment prior to this was from August 4, 2008 to August 5, 2010 as a driver. The Veteran also had full-time employment from August 6, 2006 to August 2, 2008 as a security officer. He also indicated he worked from August 7, 2002 to July 1, 2006 as a fork-lift operator 40 hours per week. While the Veteran had initially noted in his December 2011 TDIU application he last worked in 2004, he has stated more recently in January 2017, that he was working full time from August 7, 2002 to July 1, 2006, August 6, 2006 to August 2, 2008 and from August 4, 2008 to August 5, 2010. The Veteran was working full-time for nearly eight years from August 2002 to August 2010. Thus, the Board finds that the Veteran was gainfully employed prior to August 6, 2010 and therefore, he does not meet the primary criteria for entitlement to a TDIU-namely that he be unemployable. As such, the Board will deny entitlement to TDIU prior to August 6, 2010. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthrosis, right knee with limitation of flexion, prior to April 16, 2018 The Veteran contends that he is entitled to a higher evaluation for his service-connected right knee condition. In September 2020, the Board remanded the issue regarding the increased rating for the service-connected right knee conditions as the VA examiner did not comply with the July 2018 remand directives. The July 2018 Board decision remanded the issues for a retrospective medical opinion concerning the degrees of limited motion for the Veteran’s right knee with active and passive range of motion in weightbearing and non-weightbearing conditions and that experienced with repeated use over time and during flare-ups prior to the April 2018 total knee replacement in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The September 2020 Board found that the examiner did not offer the requested retrospective opinion regarding any additional functional loss associated with flare-ups reported during the November 2014 VA examination. The Veteran was afforded a VA examination in November 2020. The VA examiner stated that she cannot provide an opinion whether the flare-ups occurred for the Veteran’s right knee, including prior to April 2018 due to conflicting evidence. The Veteran had stated that he experienced constant severe pain without significant flare-ups. The examiner stated that records provide conflicting data regarding the presence or lack of flare-ups, as various reports indicated the lack of flare ups and other reports indicated intermittent flare-ups of right knee pain over the years. The VA examiner indicated that the evidence points to complaints of severe right knee pain and radiographic findings of severe arthritis of both knees in 2011, when the total knee replacement for both knees were considered. She explained the lack of flare-ups indicates constant severe pain rather than the absence of pain and functional limitations. Thus, the examiner stated she cannot comment on frequency and duration of flare-ups as well as precipitating and alleviating factors due to the lack of consistent and sufficient evidence. The VA examiner provided a retrospective opinion concerning the degrees of limited motion for the Veteran’s right knee prior to the April 2018 total knee replacement and found that in 2011 he had flexion of 85 degrees, in 2013 flexion was 80 degrees, and in 2014, his flexion was 70 degrees. She noted that the flexion with passive range of motion (non-weightbearing) the loss was likely the same due to effects of pain. With repetitive use over time the flexion was likely to be 5-10 degrees less depending on type and duration of activities. She stated that while it is not clear from the records if the Veteran experienced flare-ups, however, should flare-ups occurred, they would have caused an additional 5-10 degrees loss of active flexion. Here, while the November 2020 VA examiner provided retrospective opinions for loss of degrees of limited motion for flexion, she did not provide a retrospective opinion that addressed limitation of extension. As such, the Board finds that a remand is necessary in order to obtain a retrospective opinion for the Veteran’s right knee condition regarding limitation of extension. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthrosis, left knee with limitation of flexion, prior to August 15, 2011, in excess of 20 percent prior to December 12, 2011, and in excess of 30 percent prior to May 22, 2017 The Veteran asserts that his left knee disability ratings are higher than as currently evaluated. The September 2020 Board decision found that the issue must be remanded for a retrospective opinion concerning the degrees of limited motion for the Veteran’s left knee experienced with repeated use over time and during flare-ups prior to the December 2011 grant of a disability rating of 30 percent for limited flexion of the left knee in accordance with Sharp. The remand instructions asked the examiner to provide a retrospective opinion concerning the degrees of limited motion for the Veteran’s left knee with active and passive range of motion in weightbearing and non-weightbearing conditions and that experienced with repeated use over time and during flare-ups prior to the effective date of a 30 percent disability rating on December 12, 2011. The Veteran was afforded a VA examination in November 2020. The VA examiner stated that she cannot provide an opinion whether the flare-ups occurred for the left knee prior to 2011 due to conflicting evidence. The Veteran had stated that he experienced constant severe pain without significant flare-ups. The examiner stated that records provide conflicting data regarding the presence or lack of flare-ups, as various reports indicated the lack of flare-ups and other reports indicated intermittent flare-ups of left knee pain over the years. The VA examiner indicated that the evidence points to complaints of severe left knee pain and radiographic findings of severe arthritis of both knees in 2011, when the total knee replacement for both knees were considered. She explained the lack of flare-ups indicates constant severe pain rather than the absence of pain and functional limitations. Thus, the examiner stated she cannot comment on frequency and duration of flare-ups as well as precipitating and alleviating factors due to the lack of consistent and sufficient evidence. The VA examiner provided a retrospective opinion concerning the degrees of limited motion for the Veteran’s left knee from 2010 and 2011 and found that he had flexion of 90 degrees and extension of 0 degrees and with repetitive use, flexion was lowered to 85 degrees. She noted that the flexion with passive range of motion (non-weightbearing) the loss was likely the same due to effects of pain. With repetitive use over time the flexion was likely to be 5-10 degrees less depending on type and duration of activities. She stated that while it is not clear from the records if the Veteran experienced flare-ups, however, should flare-ups occurred, they would have caused an additional 5-10 degrees loss of active flexion. While the November 2020 VA examiner provided retrospective opinions for loss of degrees of limited motion for flexion, she did not provide a retrospective opinion that addressed limitation of extension. As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted to obtain a retrospective opinion for the Veteran’s left knee condition regarding limitation of extension. The matters are REMANDED for the following action: 1. Obtain VA treatment records from November 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. After completing the above development, obtain an addendum opinion from the VA examiner who provided the November 2020 medical opinion (or if no longer available, an appropriate replacement) for the service-connected right and left knee conditions for the purpose of obtaining a retrospective opinion. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors for the reported flare- ups. Please note that the Veteran stated during the December 2014 VA examination that he experienced intermittent moderate to severe flare-ups lasting one to two weeks and that the flare-ups were precipitated by cold or wet weather. The Veteran also stated that the flare-ups caused functional impairment including pain with prolonged standing or walking. The Veteran also noted during the September 2011 VA examination that his left knee experienced flare-ups when it rained. The Veteran also stated that the flare-ups caused functional impairment including more severe pain. The examiner should ask the Veteran to describe the flare-ups he experienced in his left knee prior to December 2011 and for his right knee prior to April 2018, to the extent possible. b) Based upon the information elicited as a result of the foregoing, to the extent possible, provide a retrospective opinion concerning the degrees of limited motion for the Veteran’s right knee (both flexion and extension) with active and passive range of motion in weightbearing and non-weightbearing conditions and that experienced with repeated use over time and during flare-ups prior to the April 2018 total knee replacement. The opinion must include range of motion of both active and passive motion, and in weightbearing and non-weightbearing. c) Based upon the information elicited as a result of the foregoing, to the extent possible, provide a retrospective opinion concerning the degrees of limited motion for the Veteran’s left knee (both flexion and extension) with active and passive range of motion in weightbearing and non-weightbearing conditions and that experienced with repeated use over time and during flare-ups prior to the effective date of a 30 percent disability rating on December 12, 2011. The opinion must include range of motion of both active and passive motion, and in weightbearing and non-weightbearing. d) The examiner is requested to offer the opinions based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use or a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. If the examiner cannot provide an opinion as to additional loss of motion on repeated use and/or flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate 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.