Citation Nr: 21028477 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-36 780 DATE: May 11, 2021 ORDER A 50 percent disability rating for headaches as a residual of service-connected traumatic brain injury (TBI) are granted, effective May 17, 2010, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent disability rating, but no higher, for service-connected TBI is granted, effective May 17, 2010, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for service-connected TBI from January 13, 2021, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the headaches associated with his service-connected TBI were characterized by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Resolving all reasonable doubt in the Veteran's favor, prior to January 13, 2021, the symptoms associated with the Veteran's service-connected TBI other than headaches resulted in a Level "1" impairment, but no more. 3. The preponderance of the evidence fails to demonstrate that the symptoms associated with the Veteran's service-connected TBI other than headaches resulted in greater than a Level "2" impairment from January 13, 2021. 4. The preponderance of the evidence fails to demonstrate that the Veteran is unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. Effective May 17, 2010, the criteria for a 50 percent rating for headaches due to TBI are met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2020). 2. Effective May 17, 2010, the criteria for a 10 percent rating for TBI are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045 (2020). 3. The criteria for a rating in excess of 40 percent from January 13, 2021 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045. 4. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1977 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Increased Ratings Relevant Procedural History The Veteran's claims for higher ratings for TBI and headaches associated with TBI are intertwined. Therefore, a brief background of the claims is necessary to explain the relationship between them. In the May 2011 rating decision on appeal, service connection for a TBI was granted with an evaluation of 0 percent, effective May 17, 2010. The Veteran timely appealed the rating, and the Board remanded the claim in March 2013 for the scheduling of a hearingthe request for which was subsequently withdrawnand again in February 2014. In that decision, the Board found that a claim for a TDIU had been raised by the Veteran during the course of the increased rating appeal. The decision also granted a 30 percent rating for headaches, as a residual of the Veteran's TBI, effective May 17, 2010, and remanded the issue of entitlement to a compensable rating for TBI. Thus, by that decision, the Veteran had a noncompensable rating for his TBI and a separate, 30 percent rating for headaches, as a residual of his TBI, with both ratings effective May 17, 2010. The matter was again before the Board in August 2017, at which time the Board characterized the claim as "entitlement to a rating in excess of 30 percent for residuals of a TBI, to include headaches," and denied a rating in excess of 30 percent. In the decision, the Board noted that it was more beneficial to rate the Veteran's TBI under Diagnostic Code 8100, which contemplates headaches, rather than under Diagnostic Code 8045. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in a September 2018 Memorandum Decision, the Court vacated the denial of an initial rating in excess of 30 percent for residuals of a TBI, to include headaches, as well as entitlement to a TDIU, and remanded the matters for further proceedings consistent with the decision. Specifically, the Court concluded that the Board, in its August 2017 decision, had failed to provide adequate reasons or bases explaining whether the September 2014 VA examiner substantially complied with a prior directive that the examination be conducted following the protocol found in VA's Disability Examination Worksheet for TBI Examination and, if not, whether the examination was rendered inadequate. Accordingly, the case returned to the Board in June 2020, at which time the claim for a rating in excess of 30 percent for residuals of a TBI, to include headaches, was remanded so that the Veteran could undergo examinations that accurately reflected the Veteran's current level of severity. Following examinations, a January 2021 rating decision increased the rating for a TBI to 40 percent disabling, effective January 13, 2021. In a corresponding Supplemental Statement of the Case (SSOC), the RO noted that while the issue had been previously characterized as "entitlement to a rating in excess of 30 percent for residuals of a TBI, to include headaches," because the Board's development included clear direction for the service-connected TBI, the RO evaluated TBI and headaches as two separate service-connected disabilities. However, there appears to be a typographical error in the SSOC, insofar as it states that "entitlement to a rating in excess of 40 percent for TBI prior to January 13, 2021, and in excess of 40 percent thereafter, remains denied." To the extent that TBI was never rated as 40 percent prior to January 13, 2021, and the January 2021 rating decision awarded the 40 percent rating specifically as of that date, the Board will conclude that the SSOC contains a typographical error and that the most recent Codesheet, corresponding with the January 2021 rating decision, is accurate. That reflects that the Veteran is in receipt of service connection for TBI, with a noncompensable rating effective May 17, 2010 and a 40 percent rating effective January 13, 2021, and is separately service-connected for headaches as a residual of TBI, with a 30 percent rating effective May 17, 2010. The Board adds that the January 2021 rating decision continued the denial of a TDIU. Relevant Laws and Regulations The Veteran seeks higher ratings for his service-connected TBI and headaches disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. A. TBI Rating Criteria The Veteran's residuals of TBI are evaluated under Diagnostic Code 8045. Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from TBI and have profound effects on functioning: (1) cognitive, which is common in varying degrees after a traumatic brain injury; (2) emotional/behavioral; and (3) physical. Each of those 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 an individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI 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, should be evaluated separately even if that diagnosis is based on subjective symptoms, rather than under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table. Id. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130, based on the schedule of ratings for mental disorders, when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. Id. Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate 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 a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluate under the most appropriate Diagnostic Code. Each condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation; and combined under 38 C.F.R. § 4.25 for each separately rated condition. The rating assigned based on the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table will be considered the rating for a single condition for purposes of combining with other disability ratings. Id. Cognitive impairment and subjective symptoms are evaluated using the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" which contains ten important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. That table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a fifth level, the highest level of impairment, and labeled total. However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than total, because any level of impaired consciousness would be totally disabling. A 100 percent rating is assigned if total is the level of evaluation for one or more facets. If no facet is evaluated as total, the overall percentage rating is based on the level of the highest facet. If the highest is 0, then a 0 percent rating is assigned. If the highest is 1, then a 10 percent rating is assigned. If the highest is 2, then a 40 percent rating is assigned. If the highest is 3, then a 70 percent rating is assigned. Id. There may be an overlap of manifestations of conditions evaluated under the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another DC. In such cases, more than one evaluation based on the same manifestations is not to be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned 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, a separate evaluation is assigned for each condition. Id., Note (1). Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Instrumental activities of daily living refer 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. Those activities are distinguished from activities of daily living, which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id., Note (3). 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. That classification does not affect the rating assigned under DC 8045. Id. The table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations of 0 for no complaints of impairment of memory, attention, concentration, or executive functions; 1 for a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; 2 for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; 3 for objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and total for objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations of 0 for normal; 1 for mildly impaired judgment for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; 2 for moderately impaired judgment, for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; 3 for moderately severely impaired judgment, for even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and total for severely impaired judgment, for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations of 0 for social interaction is routinely appropriate; 1 for social interaction is occasionally inappropriate; 2 for social interaction is frequently inappropriate; and 3 for social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations of 0 for always oriented to person, time, place, and situation; 1 for occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; 2 for occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; 3 for often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and total for consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations of 0 for motor activity normal; 1 for motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); 2 for motor activity mildly decreased or with moderate slowing due to apraxia; 3 for motor activity moderately decreased due to apraxia; and total for motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations of 1 for mildly impaired, occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions, is able to use assistive devices such as GPS (global positioning system); 2 for moderately impaired, usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance, has difficulty using assistive devices such as GPS; 3 for moderately severely impaired, gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and total for severely impaired, such as unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations of 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships, examples are mild or occasional headaches, mild anxiety; 1 for three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships, examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and 2 for three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships, examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations of 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability, any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and 3 for 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. Impairment of communication is assigned numerical designations of 0 for able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; 1 for comprehension or expression, or both, of either spoken language or written language is only occasionally impaired, can communicate complex ideas; 2 for inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time, can generally communicate complex ideas; 3 for inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time, may rely on gestures or other alternative modes of communication, able to communicate basic needs; and total for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both, unable to communicate basic needs. B. Migraine Rating Criteria Under Diagnostic Code 8100, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 50 percent rating is the maximum rating available under Diagnostic Code 8100. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Prostration is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012). Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. See id. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Facts and Analysis Having set forth the relevant rating criteria, the Board will review the relevant lay and medical evidence throughout the period on appeal. The Veteran underwent a VA examination in August 2010. He reported intermittent occipital headaches occurring two to three times per week, with a pain level of "7" out of "10," lasting on average six to eight hours and relieved with pain medication. The Veteran reported being nonfunctional 80 percent of the time with headaches when he had to lie down and sleep. He reported other symptoms including dizziness, bilateral arm weakness, chronic sleep disturbance, mobility limitations, balance problems, speech problems, sensory changes, depression and anxiety, memory impairment, difficulty focusing, vision problems, and hearing problemsthough the examiner noted that these were not caused by or due to his TBI. On examination, the Veteran was fully alert and oriented with appropriate behavior. He had apparent comprehension with coherent answers. He was able to dress, undress, and transfer independently without assistance. There was no imbalance, pronator draft, tremors, fasciculations, spasticity, or rigidity. He had normal finger-to-nose movements. He had normal 5/5 strength and normal 5/5 grip strength. The examiner noted that the Veteran reported a mild impairment in memory, attention, concentration, and executive functions. Judgment was normal. Social interactions were routinely appropriate. The Veteran was oriented and had normal motor activity and spatial orientation. The Veteran reported three or more subjective symptoms, which included headaches, mild anxiety, depression, insomnia, and neck and back pain, that mildly interfered with activities of daily living. The examiner noted the Veteran's report of neurobehavioral effects, including moodiness, irritability, and verbal and physical aggression, and the examiner determined that such occasionally interfered with workplace and/or social interaction, but they did not preclude them. The examiner noted that the Veteran was able to communicate by and comprehend spoken and written language, although the Veteran reported some limitations in writing or playing keyboard due to neck and arm problems. The Veteran had normal consciousness. As noted above, based on the findings from August 2010, the Board, in a February 2014 decision, awarded a 30 percent rating for headaches due to TBI pursuant to Diagnostic Code 8100. While the Board subsequently found a September 2014 VA examination to be inadequate based on a partially incomplete examination worksheet, it is relevant to note that the Veteran, at that time, had no complaints of impairment of memory, attention, concentration, and executive functions. The Veteran's judgment was normal. Social interactions were deemed routinely appropriate. The Veteran was always oriented, had normal motor activity, normal spatial orientation, no subjective symptoms, no neurobehavioral effects, was able to communicate by and comprehend spoken and written language, and had normal consciousness. The examiner indicated that the Veteran did not have an Axis I psychiatric diagnosis, that TBI did not result in total occupational and social impairment, deficiencies in judgment, thinking, family relations, work, mood or school, reduced reliability and productivity, occasional decrease in work efficiency, intermittent periods of inability to perform occupational tasks, or symptoms that were transient or mild to a TBI-related mental disorder. The examiner noted that the Veteran had a normal head CT in April 2009, and that the Veteran reported having headaches approximately 20 days per month, with characteristic prostrating attacks of headache pain on average once per month, which did not result in pain productive of severe economic inadaptability. Following the June 2020 Board Remand, the Veteran underwent additional VA examinations in January 2021. At a VA headaches examination, the examiner specifically noted that the Veteran's headaches were a residual of his TBI and not a separate diagnosis. The Veteran reported constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsened with physical activity. Symptoms associated with headaches included nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. Duration of typical head pain was less than one day. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once a month, but noted that the attacks were not productive of severe economic inadaptability. Later in the report, the examiner noted that the Veteran reported marked fatigability, blurred or double vision, and headaches requiring rest periods during most days that impacted his ability to work and interfered with activities of daily living. The Veteran also underwent a TBI examination in January 2021. On assessment of TBI symptoms, the examiner noted that there was a complaint of memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Specifically, the Veteran reported mild memory and concentration difficulties dating back to 1989. The examiner indicated that he had normal judgment, social interaction was deemed routinely appropriate, and he was noted to be always oriented to person, time, place, and situation. He also had normal motor activity and normal visual spatial orientation. It was noted that the Veteran had three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family or other close relationships. Specifically, the Veteran reported marked fatigability, blurred or double vision, headaches requiring rest periods during most days that moderately interfered with work and activities of daily living. The examiner stated that the vision changes were more likely than not due to a separate etiology and not due to TBI. As for neurobehavioral effects, the examiner noted the presence of irritability that frequently interfered with workplace interaction, social interaction, or both, but do not preclude them. The Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. He had normal consciousness. Subjective symptoms noted included headaches, including migraine headaches. No other pertinent physical findings were noted. As noted above, the Veteran is in receipt of a noncompensable rating prior to January 13, 2021, and a 40 percent rating as of that date for his service-connected TBI. Separately, he is assigned an initial 30 percent rating for his headaches as of May 17, 2010. Based on the evidence of record, and after affording all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to an initial 50 percent disability rating, effective May 17, 2010, under Diagnostic Code 8100, the highest possible rating under that code. Furthermore, the Board finds that the Veteran is entitled to separate 10 percent disability rating under Diagnostic Code 8045 for his service-connected TBI, effective May 17, 2010. However, as will be explained, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to January 13, 2021, or in excess of 40 percent thereafter for his service-connected TBI. Initially, with regard to the Veteran's headaches, the evidence of record demonstrates that they have been manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability throughout the appeal period. Indeed, in August 2010, the Veteran explained that he suffered from headache attacks two to three times a week and that the headaches lasted on average six to eight hours per day. Moreover, the Veteran told the September 2014 VA examiner that he had headaches approximately 20 days per month. The various symptoms such as pulsating or throbbing headache pain, sensitivity to light and sound, changes in vision, and sensory changes, are representative, in the Board's view, of severe headaches that can be reasonably described as completely prostrating. Moreover, while the evidence shows that the Veteran is unemployed, the Board finds that if he were working, his headaches would impair his functioning at work to a degree amounting to "severe" economic inadaptability. Indeed, the January 2021 examiner indicated that although the Veteran was unemployed, his headaches resulted in the need for rest periods during most days that impacted his ability to work. The Board therefore finds that the symptoms of the Veteran's headaches have been relatively consistent throughout the entirety of the appeal period, and more nearly approximate the 50 percent criteria for the entire period under review, as the Veteran's attorney contends in a February 2018 Appellant's Brief. The Board adds that 50 percent is the maximum rating available under Diagnostic Code 8100. The Board also finds that a separate 10 percent rating for TBI is warranted for the entire appeal period, based upon the highest severity level of "1" pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045, based on mild memory impairment. Indeed, at the August 2010 VA examination, the examiner noted his a complaint of mild memory loss in the "Memory, Attention, Concentration, Executive Functions" portion of the TBI examination, suggesting that mild memory impairment has been present throughout the entirety of the appeal period. The examiner also noted the Veteran's report of neurobehavioral effects, including moodiness, irritability, and verbal and physical aggression, and the examiner determined that such occasionally interfered with workplace and/or social interaction, but they did not preclude them. Both the mild memory loss and the presence of neurobehavioral effects occasionally interfering with workplace and/or social interaction, but not precluding them, equate to Level 1 impairments under the "Memory, Attention, Concentration, Executive Functions" facet and the "Neurobehavioral Effects" facet warranting the assignment of a 10 percent rating under Diagnostic Code 8045. Because the complaint of memory loss and the Veteran's neurobehavioral effects are separate residuals from the Veteran's headaches, he is entitled to a separate rating for TBI under Diagnostic Code 8045. However, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent under Diagnostic Code 8045 prior to January 13, 2021. Indeed, the evidence of record fails to demonstrate that the symptoms associated with the Veteran's service-connected TBI other than his headaches were of such a severity so as to meet the criteria for a Level 2 impairment or worse under Diagnostic Code 8045. As noted above, in the January 2021 rating decision, the RO increased the Veteran's TBI rating to 40 percent disabling effective January 13, 2021, based upon the results of the January 2021 VA examination. Specifically, the RO noted that the award of a 40 percent rating was based on the examiner's finding of a level "2" impairment under the "neurobehavioral effects" facet enumerated in Diagnostic Code 8045. Insofar as a higher is available under Diagnostic Code 8045, the probative evidence of record fails to demonstrate that the symptoms associated with the Veteran's service-connected TBI other than his headaches were of such a severity so as to meet the criteria for a Level 3 impairment or worse under Diagnostic Code 8045. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his service-connected TBI and headaches, including the symptoms associated with those disabilities, as he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Indeed, in assigning the 50 percent disability rating under Diagnostic Code 8100 and the 10 percent rating under Diagnostic Code 8045, the Board has relied on the VA examination reports of record which, in turn, relied on his lay statements concerning the symptoms and effects associated with his TBI and headaches. However, with respect to the requirements for higher ratings, the Board finds that the medical evidence is more probative, as it offers detailed, specific, specialized determinations pertinent to the rating criteria, and it is the most probative with regard to evaluating the pertinent symptoms for the disabilities on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In summation, after resolving all reasonable doubt in the Veteran's favor, the Board finds that a 50 percent disability rating is warranted for his headaches under Diagnostic Code 8100, effective May 17, 2010. Furthermore, a 10 percent disability rating is warranted for his TBI under Diagnostic Code 8045, effective May 17, 2010. However, the preponderance of the evidence is against higher ratings at any point during the appeal period. Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU The Veteran filed an application for a TDIU in June 2014, asserting that his service-connected TBI with headaches prevented him from maintaining substantially gainful employment. It is the established policy of VA 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. See 38 C.F.R. § 4.16. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16 (a). Assignment of a TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran's income exceeds the poverty threshold. The noneconomic component requires a determination as to a Veteran's ability to secure and follow such employment. With regard to the latter component, attention should be given to the Veteran's history, education, skill, and training. Consideration should also be given to both the Veteran's physical and mental abilities. From a physical standpoint, possible relevant factors include the Veteran's limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Regarding the Veteran's mental ability, possible relevant factors include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether unemployability exists, consideration should not be given to the Veteran's age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. By way of this decision, prior to January 13, 2021, the Veteran's service-connected disabilities are headaches, rated 50 percent disabling; TBI, rated 10 percent disabling, tinnitus, rated 10 percent disabling, and left ear hearing loss, rated 0 percent disabling. The Veteran's TBI and headaches disabilities arise from a single disease entity pursuant to 38 C.F.R. § 4.25(b) and the 50 percent and 10 percent rating, taken together, combine to a 60 percent rating, which meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). From January 13, 2021, the Veteran's service-connected disabilities are headaches, rated 50 percent disabling; TBI, rated 40 percent disabling; tinnitus, rated 10 percent disabling; and left ear hearing loss, rated 0 percent disabling. The Veteran's combined disability rating is 70 percent. Thus, the question is whether the Veteran is able to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. After a review of the evidence of record, the Board continues to find that a TDIU is not warranted. In an application for VA Vocational Rehabilitation services in August 2011, the Veteran indicated that it was his nonservice-connected back and neck disabilities that prevented him from any type of physical activity, including moving, standing, stooping, walking, lifting, reaching, etc. When asked to list service-connected disabilities and how they limited the ability to work, the Veteran listed "hearing" without any explanation. He noted that his low back disability prevented work. In his June 2014 VA Form 21-8940, the Veteran reported that he last worked in 1998, at which time he became too disabled to work. He noted that he last worked as a custodian and indicated that he had a high school education and two years of a college education. Social Security Administration (SSA) records provide a more detailed employment history. Indeed, those records show that the Veteran reported losing his most recent job as a janitor in 2000 due to his nonservice-connected back condition. In a January 1997 function report completed in conjunction with SSA benefits, in response to a question of what the Veteran's disabling illnesses or injuries were, he responded, "back problem." Other employment noted on his job history report included work in janitorial and cleaning, carpentry, building maintenance, and lawn work. At an August 2010 VA audio examination, the examiner opined that the Veteran's hearing loss and tinnitus resulted in hearing difficulty, and difficulty in conversations at work. It was not suggested that either condition prevented the Veteran from obtaining or maintaining substantially gainful employment. A June 2014 private treatment note indicates that the Veteran's headaches condition was "stable." At a September 2014 VA TBI examination, the examiner opined that the Veteran's service-connected disabilities rendered him able to secure or follow a substantially gainful occupation in light of his education, training, and work history. The examiner added that the Veteran was capable of regular or moderate physical activity, if he so chose. The examiner reported that the Veteran's TBI with headaches resulted in mild functional limitations. At January 2021 VA headaches and TBI examinations, the examiner noted that the Veteran reported headaches requiring rest periods during most days that interfered with his ability to work and activities of daily living. In a January 2021 individual unemployability statement, an examiner wrote that the Veteran used a wheelchair which precluded him from performing jobs which required physical activity. The examiner added that the Veteran was able to perform the most basic and low stress jobs in low stress environments requiring minimal ability to focus and concentrate as his headaches impaired his ability to maintain focus and concentration. After a careful review of the foregoing, the Board finds that the medical evidence does not show that the Veteran's service-connected disabilities alone result in an inability to obtain or maintain substantially gainful employment. While the VA examiners throughout the relevant time period have acknowledged that the Veteran's service-connected disabilitiesspecifically his TBI and headaches conditionsmight limit the types of work that could be performed, they have also opined that his service-connected disabilities would not preclude any type of employment whatsoever. The Veteran has not submitted any medical opinion evidence that is contrary to the findings of the VA examiners. The Board has also considered treatment records dated throughout the appeal period, which tend to show that the Veteran's most debilitating conditionsand the cause of his inability to obtain and maintain gainful employmentare his nonservice-connected back and neck conditions. Indeed, in February 2013, the Veteran told a VA provider that his medical problems included his depression, back, and neck issues. In January 2014, he noted to a VA provider that he was having a difficult recovery after back surgery and that he required assistance with his activities of daily living because of his back. As noted above, SSA records show that it was his back and neck conditions that prompted him to stop working around 1999 or 2000. Vocational rehabilitation records from 2011 indicate that the Veteran believed his neck and his back disabilities were the primary disabilities that prevented him from working. In his application for vocational rehabilitation, he did not mention any symptomatology stemming from his headaches or TBI residuals. Indeed, VA treatment records do not show that the Veteran has ever mentioned his TBI or headaches as conditions preventing any type of employment. While the Board does not doubt in any way that his service-connected conditions affect the Veteran's daily lifeand indeed, has increased the rating for the Veteran's service-connected headaches insofar as the Board has found the evidence to show that they are productive of severe economic inadaptabilitythe Board also finds that the symptomatology associated with the Veteran's TBI and headaches is appropriately compensated via the combined rating in effect during the time period at issue, which the Board has increased by way of this decision. Loss of industrial capacity is the principal factor in assigning schedular ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 states: "generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capacities are impaired). Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a TDIU due to the Veteran's service-connected disabilities at any point during the appeal period, and his claim must be denied. See 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.