Citation Nr: 21030798 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 06-16 628 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 70 percent, from March 11, 2017, for mild neurocognitive disorder with unspecified anxiety disorder is denied. Entitlement to a compensable rating prior to December 5, 2020 for tension headaches is denied. Entitlement to a 50-percent rating from December 5, 2020 for migraine headaches is granted, subject to the law and regulations governing the payment of monetary VA benefits. Entitlement to a rating in excess of 40 percent from October 23, 2008 to March 11, 2017 for residuals of closed head injury with occipital fracture is denied. Entitlement to an evaluation in excess to 30 percent from August 11, 2004 to March 11, 2017 for post-concussive syndrome with anxiety and depression associated with peripheral vestibular disorder with residuals of traumatic brain injury (TBI) is denied. Entitlement to a rating in excess of 10 percent for peripheral vestibular disorder from December 5, 2020 is denied. REMANDED Entitlement to a rating in excess of 10 percent for right retropatellar pain syndrome is remanded. Entitlement to special monthly compensation is remanded. FINDINGS OF FACT 1. From March 11, 2017, the Veteran's neurocognitive disorder with unspecified anxiety disorder has manifested mainly as irritability, depressed mood, anxiety, sleep impairment, difficulty in adapting to stressful circumstances, anxiety, memory impairment, and impaired judgment. The symptoms are not on a par with those of more severe disability, such as gross impairment in thought process, grossly inappropriate behavior, delusions, and hallucinations. 2. Prior to December 5, 2020, the Veteran's tension headaches did not manifest as characteristic prostrating attacks that occurred, on average, once in 2 months over the last several months. 3. From December 5, 2020, the Veteran's migraine headaches have been manifested by very frequent completely prostrating and prolonged migraine headache attacks productive of severe economic inadaptability. 4. From October 23, 2008 to March 11, 2017, the Veteran's residuals of closed head injury with occipital fracture did not manifested by a level of severity higher than "2" for any facet of the residuals of TBI. 5. For the period August 11, 2004 to March 11, 2017, the Veteran's post-concussive syndrome with anxiety and depression associated with peripheral vestibular disorder with residuals of traumatic brain injury manifested mainly as irritability, sleep difficulties, fatigue, concentration difficulties, anxiety, feeling of hopelessness, and depression. Symptoms approximating occupational and social impairment with reduced reliability and productivity due to symptoms such as circumlocutory speech, impaired judgment and abstract thinking, and panic attacks more than once a week are not shown or approximated. 6. From December 5, 2020, the Veteran's peripheral vestibular disorder manifests as vertigo that occurs more than once weekly and lasts less than one hour, without occasional staggering. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent from March 11, 2017 for mild neurocognitive disorder with unspecified anxiety disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.130, Diagnostic Code 9304. 2. The criteria for a compensable rating prior to December 5, 2020 for tension headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.124A, Diagnostic Code 8100. 3. The criteria for a 50-percent rating, and not higher, from December 5, 2020 for migraine headaches are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.14, 4.124A, Diagnostic Code 8100. 4. The criteria for a rating in excess of 40 percent from October 23, 2008 to March 11, 2017 for residuals of closed head injury with occipital fracture are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.124A Diagnostic Code 8045. 5. The criteria for an evaluation in excess to 30 percent from August 11, 2004 to March 11, 2017 for post-concussive syndrome with anxiety and depression associated with peripheral vestibular disorder with residuals of traumatic brain injury (TBI) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.130, Diagnostic Code 9304. 6. The criteria for a rating in excess of 10 percent from December 5, 2020 for vestibular disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to August 1992, and from September 1993 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of August 2004, November 2011, July 2012, July 2017, and September 2018. The Board remanded one or more of these issues in July 2008, June 2014, August 2019, and July 2020. This case has been subject to a December 2018 remand by the U.S. Court of Appeals for Veterans Claims (Court). A rating decision of August 2004 granted service connection for post concussive syndrome status post closed head injury with occipital fracture. A 10-percent rating, effective August 11, 2004, was established. The Veteran filed a notice of disagreement (NOD) in November 2004 and VA Form 9 in May 2006. The schedular criteria for rating residuals of traumatic brain injury changed during the pendency of the appeal, effective October 23, 2008 for claims filed on and after that date. 73 Fed. Reg. 54,693 (Sept. 23, 2008). Generally, the earlier criteria apply to applications received by VA prior to that date. A veteran whose residuals of TBI were rated by VA under the prior regulations may request review under the new criteria, irrespective of whether the disability worsened since the last review or whether VA receives any additional evidence. The effective date of any increase in disability compensation based solely on the new criteria can be no earlier than the effective date of the new criteria. 73 FR 54693 (September 23, 2008). In this case, while the Veteran did not specifically request review under the new regulations, the AOJ has applied both criteria, and therefore the Board will do so as well. By an order of July 2008, the Board remanded the issue of entitlement to an increased rating for post concussive syndrome status post closed head injury with occipital fracture for an examination to determine the full extent and nature of all neurological and/or mental disorder residuals associated with the service-connected disability. A rating decision of July 2012 granted service connection for post concussive syndrome with anxiety and depression as secondary to the service-connected disability of residuals of closed head injury with occipital fracture. This disability was separate from the evaluation for closed head injury with occipital fracture. A 30-percent evaluation, effective August 11, 2004, was established. In June 2014, the Board remanded for additional evidence and a new VA examination relating to the TBI residuals. A rating decision of July 2017 granted service connection for mild neurocognitive disorder with unspecified anxiety disorder, with a 40-percent evaluation, effective March 11, 2017. The previously assigned evaluations for post concussive syndrome with anxiety and depression (30 percent) and for residuals of closed head injury with occipital fracture (10 percent) were discontinued effective March 11, 2017. By an order of March 2018, the Board made the following determinations: entitlement to a rating in excess of 10 precent for closed head injury with occipital fracture for the period prior to October 23, 2008 was denied; entitlement to a 40- percent rating for residuals of a closed head injury with occipital fracture for the period from October 23, 2008 to March 11, 2017 was granted; entitlement to a rating in excess of 30 percent for post concussive syndrome with anxiety and depression, as secondary to residuals of a closed head injury with occipital fracture, for the period from August 11, 2004 to March 11, 2017 was denied; and entitlement to a 70-percent rating for neurocognitive disorder with unspecified anxiety disorder for the period beginning March 11, 2017 was granted. The Veteran appealed to the Court which, in December 2018, granted a joint motion for partial remand by which the Board's March 2018 denial of rating increases was vacated, and the matter was remanded to the Board for further consideration. The CAVC order noted that the Veteran was no longer appealing the portion of the Board's decision that denied entitlement to an initial rating in excess of 10 percent for residuals of a closed head injury with occipital fracture from August 11, 2004 to October 23, 2008. That aspect of the rating is therefore not before the Board. A claimant may expressly limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). By orders of August 2019 and July 2020, the Board remanded for new VA examinations. A rating decision of January 2021 determined that it was clear and unmistakable error for the July 2017 rating decision not to have granted a separate evaluation for a co-morbid headache disorder. Service connection was granted for tension headaches from October 23, 2008, with an evaluation of 0 percent, and for migraine headaches from December 5, 2020, with a 30-percent rating. The January 2021 rating decision also determined that, effective December 5, 2020, the residuals of traumatic brain injury (TBI) were to be evaluated separately from the service-connected mild neurocognitive disorder with unspecified anxiety disorder and TBI. Accordingly, effective December 5, 2020, an evaluation of 10 percent was assigned for peripheral vestibular disorder with residuals of traumatic brain injury. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. "Staged" ratings are appropriate if factual findings show distinct time periods in which the service- connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Under 38 C.F.R. § 4.14, the evaluation of the same disability or its manifestation under various diagnoses is to be avoided. When there is an approximate balance of evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under the version of Diagnostic Code (DC) 8045 that was in effect prior to October 23, 2008, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., related to a TBI were rated under the diagnostic codes specifically for those disabilities, with the use of a hyphenated diagnostic code. Purely subjective complaints such as headaches, dizziness, insomnia, etc., recognized as symptoms of a TBI, were rated at 10 percent under DC 9034. This 10-percent rating was not to be combined with any other rating for a disability due to a TBI. A rating in excess of 10 percent for TBI under Diagnostic Code 9034 was not permitted, unless there was a diagnosis of multi-infarct dementia associated with the TBI. 38 C.F.R. § 4.124a, DC 8045 (2008). Under the current rating criteria, residuals of traumatic brain injury are rated under 38 C.F.R. § 4.124A, DC 8045, which provides for the evaluation of three main areas of dysfunction: cognitive, emotional/behavioral, and physical. 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, the symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified ("Table"). 38 C.F.R. § 4.124a, DC 8045. Emotional/behavioral dysfunction must be evaluated under § 4.130 (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. Physical (including neurological) dysfunction will be evaluated under an appropriate diagnostic code for that disability. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation. The evaluations for each separately rated condition will be combined under 38 C.F.R. § 4.25. 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 to be evaluated under the subjective symptoms facet in the Table. Any residual with a distinct diagnosis that may be evaluated under another diagnostic code must be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the Table. The Table lists ten facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. There are 5 levels of impairment for each facet and criteria for each level (0, 1, 2, 3, and total). Not every facet has every level of severity. The symptoms listed as examples at certain evaluation levels in the Table are only examples and need not be present in order to assign a particular evaluation. A 100-percent evaluation must be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70- percent evaluation should be assigned if 3 is the highest level of evaluation for any facet. The manifestations of conditions evaluated pursuant to the Table may overlap with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation should not be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is to be assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. If, however, the manifestations are clearly separable, a separate evaluation should be assigned for each condition. Symptoms listed as examples at certain evaluation levels in the Table are only examples and are not symptoms that must be present in order to assign a particular evaluation. "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. The terms "mild," "moderate," and "severe" traumatic brain injury, when used in medical records to 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, do not affect the rating assigned under Diagnostic Code 8045. 38 C.F.R. § 4.124a, DC 8045. Mental disorders are rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, which provides for an evaluation of 30 percent for a mental disorder that results in occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks (although generally functioning satisfactorily), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and/or mild memory loss. A 50-percent evaluation is warranted if the disorder results in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70-percent evaluation is warranted where a psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech which is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, warrants the maximum, 100-percent disability rating The words "such symptoms as" in the Rating Formula mean "for example." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A veteran may qualify for a given disability rating by symptoms that are similar in severity, frequency, and duration to the listed examples. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). When it is not possible to separate the effects of a service- connected disability and a nonservice-connected disability, all such effects will be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). 1. Entitlement to an evaluation in excess to 70 percent for mild neurocognitive disorder with unspecified anxiety disorder from March 11, 2017. By an order of August 2019, the Board remanded the issue of entitlement to an evaluation in excess of 70 percent for mild neurocognitive disorder with unspecified anxiety disorder from March 11, 2017. A March 2018 Board order had granted entitlement to a 70-percent rating for neurocognitive disorder with unspecified anxiety disorder from March 11, 2017. Prior to March 11, 2017, the disabilities of 1) post-concussive syndrome with anxiety and depression and 2) residuals of a closed head injury with occipital fracture were evaluated separately. Beginning March 11, 2017, these conditions were evaluated together, because a VA examiner was unable to differentiate between the symptoms of the two conditions. Applicable regulations prohibit separate evaluations of overlapping symptoms of multiple service-connected conditions. 38 C.F.R. § 4.14. A January 2021 rating decision determined that, effective December 5, 2020, the residuals of traumatic brain injury were to be evaluated separately from the service-connected mild neurocognitive disorder with unspecified anxiety disorder. Accordingly, effective December 5, 2020, an evaluation of 10 percent was assigned for peripheral vestibular disorder with residuals of traumatic brain injury, and mild neurocognitive disorder with unspecified anxiety disorder was no longer evaluated with the service connected residuals of TBI. In March 2017, the Veteran underwent a VA examination for mental disorders. Unspecified anxiety disorder and mild neurocognitive disorder were diagnosed. In the examiner's opinion, it is more likely than not that the Veteran's reported memory difficulties are related to a mild neurocognitive disorder, that irritability is attributable to the TBI (rather than an anxiety condition), and that sleep impairment and worry are attributable to the anxiety condition. At the time of the March 2017 examination, the Veteran was married and lived at home with his wife and 19-year-old son. He had friends outside of the workplace and reportedly enjoyed having dinner with friends, cookouts at home, family get- togethers, reading, and watching television. He had been employed as a cook at a kindergarten for the past seven years. The symptoms associated with the diagnosed unspecified anxiety disorder and mild neurocognitive disorder were anxiety and chronic sleep impairment. The Veteran arrived on time for the examination, was appropriately dressed, and responded appropriately. There was a significant stutter. There were no obvious difficulties with concentration, orientation, or fund of knowledge. The Veteran appeared to the examiner to accurately represent his current mental health status. The overall assessment of the examiner was that occupational and social impairment due to mild or transient symptoms decreased work efficiency and an inability to perform occupational tasks only during periods of significant stress, or that the symptoms were controlled by medication. In January 2020, the Veteran underwent a VA examination for mental disorders. It was determined that most symptoms of the diagnosed unspecified anxiety disorder and neurocognitive disorder tend to overlap and that differentiation was not possible without speculating. At the same time, the examiner determined that, for the indicated level of occupational and social impairment, it was possible to differentiate which impairment is caused by each mental disorder. Specifically, the neurocognitive disorder affects the Veteran's ability to do many types of work. His loss of ability to concentrate for prolonged periods makes many activities difficult. His irritability was considered to be an "important impairment." It was also noted that his anxiety, a symptom of both neurocognitive disorder and anxiety disorder, was an important impairment and complicated his working life as well as his social/ personal relationships. The symptoms noted to be associated with the diagnoses were anxiety, chronic sleep impairment, irritability, impairment of short- and long-term memory, and impaired judgment. The overall assessment of the examiner was that occupational and social impairment occasionally decrease work efficiency and cause an intermittent inability to perform occupational tasks, although the Veteran generally functioned satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was noted to have difficulty concentrating during his headaches. Headaches, however, have been separately service-connected since October 23, 2008, and will not to be considered in evaluating the mild neurocognitive disorder with unspecified anxiety disorder from March 11, 2017. 38 C.F.R. § 4.14. The Veteran underwent a VA examination for mental disorders in November 2020. The unspecified anxiety disorder was noted to be secondary to the mild neurocognitive disorder due to TBI. The examiner was able to differentiate the symptoms attributable to the diagnoses of unspecified anxiety disorder, mild neurocognitive disorder due to TBI, and headache secondary to TBI. Mild memory loss, ease of distraction, and occasional disorientation to place were attributable to mild neurocognitive disorder due to TBI. Depressed mood, anxiety, difficulty adapting to stressful circumstances, including work or a worklike setting, were due to unspecified anxiety disorder. Chronic sleep impairment and irritability were symptoms of both the neurocognitive disorder and the unspecified anxiety disorder. It was also determined that the memory difficulty, the loss of concentration, and sleeping difficulty led to anxiety about having to do things and a loss of motivation to do them, which the Veteran claims as his depression. Symptoms associated with the diagnoses were depressed mood, anxiety, chronic sleep impairment, mild memory loss, and difficulty in adapting to stressful circumstances (including work or a work-like setting). The overall assessment was occupational and social impairment with reduced reliability and productivity. A July 2020 Board decision denied entitlement to service connection for a sleep disorder. It was determined that the Veteran's chronic sleep impairment and frequent insomnia are symptoms of his service-connected post concussive and neurocognitive disabilities and are not a separate disability for compensation purposes. For the period from March 11, 2017, the medical and lay evidence indicates symptoms mainly of irritability, depressed mood, anxiety, chronic sleep impairment, difficulty in adapting to stressful circumstances anxiety, memory impairment, and impaired judgment. The symptoms are not on a par with those indicative of a higher, 100-percent rating under the General Rating Formula for Mental Disorders, such as gross impairment in thought process, grossly inappropriate behavior, and delusions or hallucinations. 38 C.F.R. § 4.125, 38 C.F.R. §§ 4.126, 4.130. Because the criteria of a higher rating are not approximated in the relevant period, the claim must be denied. A preponderance of the evidence is against the claim. In accordance with Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Board has not limited its analysis to the symptoms listed in the General Rating Formula as examples for each incremental rating. 2. Entitlement to a compensable rating prior to December 5, 2020 for tension headaches. 3. Entitlement to a rating in excess of 30 percent from December 5, 2020 for migraine headaches. Under 38 C.F.R. § 4.124(a), DC 8100, migraine headaches with characteristic prostrating attacks occurring on average less than once in 2 months over the last several months warrant a noncompensable rating. If such attacks occurred on average once in 2 months over the last several months, a 10-percent rating is warranted. Headaches with characteristic prostrating attacks occurring on average once a month over the last several months warrant a 30-percent evaluation such attack. Migraine headaches with very frequent, completely prostrating, prolonged attacks productive of severe economic inadaptability warrant a 50-percent evaluation. The rating criteria do not define "prostrating." Two dictionary definitions of prostration are "complete physical or mental exhaustion" (Merriam Webster's Collegiate Dictionary, 11th Ed. 2007) and "extreme exhaustion or powerlessness" (Dorland's Illustrated Medical Dictionary, 32nd Ed. 2012). For the period prior to December 5, 2020, the Board determines that a preponderance of the evidence is against finding entitlement to a compensable rating. A June 2009 record of Dr. J. B. notes a history of ongoing tension headaches. A current complaint of daily headaches is noted in a June 2012 record of Dr. J. B., which also referenced the headaches in explaining why the criteria were met for a DSM-IV diagnosis of post concussive syndrome secondary to traumatic brain injury. A January 2014 Department of Defense (DoD) treatment record notes the Veteran's report of persistent, ongoing ("24/7") headaches. In September 2016, the Veteran underwent a VA examination for headaches, including migraine headaches. The diagnosis was headache secondary to TBI. The Veteran reported having had persistent, posterior headaches almost daily since his TBI of 2002. He treated them with over-the-counter medication as needed. The examiner noted pulsating or throbbing posterior head pain that worsens with physical activity. The headache pain typically lasted less than one day. The non- headache symptoms were sensitivity to light and sound. The Veteran had neither characteristic attacks of migraine headache pain nor very frequent prostrating and prolonged attacks of migraine pain or non-migraine headache pain. Occasional headaches are noted in an October 2018 DoD treatment record. A VA medical review report of April 2020 noted the Veteran's frequent headaches accompanied by light sensitivity and occasional nausea. In December 2020, the Veteran again underwent a VA headaches examination. The diagnosis was migraine headaches including migraine variants. The current reported symptoms were headaches with pulsating or throbbing on both sides of the head and light/sound sensitivity. The headaches lasted less than one day. Characteristic prostrating attacks of migraine/non-migraine headache pain were found to occur more than once per month, specifically once per week. The examiner noted that, during a prostatic attack, the Veteran needs to lay down and rest in a quiet place. He is unable to work at these moments and must stay at home. There was a finding of no "very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability." For the period prior to December 5, 2020, the evidence does not approximate the criteria of a higher, 10-percent rating, namely characteristic prostrating attacks that occur less frequently, on average, than once over the preceding two months. Therefore, the claim must be denied for this period. From December 5, 2020, the criteria for the maximum, 50-percent rating are met. Resolving reasonable doubt in the Veteran's favor, the Board determines that the weekly prostrating attacks, which last up to a day and require the Veteran to stay at home, lay down, and not work, are very frequent, completely prostrating, and prolonged attacks that produce severe economic inadaptability. The Board notes that the finding of the December 2020 VA examiner was that the Veteran's prostrating attacks were not "very prostrating" (which is not the standard of DC 8100), as opposed to not "very frequent." The Veteran will be in receipt of the highest rating for migraine headaches for the post-December 5, 2020 period. Because migraine is a disorder specifically listed in the Rating Schedule, it may not be rated by analogy under another diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). 4. Entitlement to a rating in excess of 40 percent from October 23, 2008 to March 11, 2017 for residuals of closed head injury with occipital fracture. A rating decision of August 2004 granted service connection for post concussive syndrome status post closed head injury with occipital fracture, with a 10-percent rating, effective August 11, 2004. A rating decision of July 2017 granted service connection for mild neurocognitive disorder with unspecified anxiety disorder, with a 40-percent rating, effective March 11, 2017. The separate evaluation for residuals of closed head injury with occipital fracture was discontinued effective March 11, 2017. A March 2018 Board decision granted a rating increase, from 10 percent to 40 percent, for residuals of a closed head injury with occipital fracture for the period October 23, 2008, to March 11, 2017. Entitlement to a 70-percent rating was granted for neurocognitive disorder with unspecified anxiety disorder for the period beginning March 11, 2017. The December 2018 CAVC order that granted a joint motion for partial remand did not vacate these grants of the March 2018 order. By a remand of August 2019, the Board ordered a retrospective medical opinion to discuss the severity of symptoms for the period October 23, 2008 until September 2016 (the date of the VA examination for residuals of TBI). Earlier VA examinations of June 2009 and February 2012 were determined to be inadequate for evaluation purposes. There is a now of record a retrospective medical opinion of April 2020 that discusses the Veteran's TBI symptoms for the period dating from October 23, 2008 to September 2016. Under the pre-October 23, 2008 regulations, a rating in excess of 10 percent was not awarded for purely subjective complaints, and purely neurological complaints were to be rated under the diagnostic codes specifically dealing with those disabilities. 38 C.F.R. § 4.124a, DC 8045 (2008). Under the post-October 23, 2008 regulations, entitlement to a rating in excess of 40 percent would require evidence approximating a "3" or higher level assigned as the highest level for one or more facets. As explained below, on the basis of the retrospective analysis of the April 2020 VA medical opinion and a review of the entire record, a preponderance of the evidence is against finding entitlement to a level of severity higher than "2" for any facet during the relevant period. Under Facet 1, relating to memory, attention, concentration, and executive functions, a "2" corresponds to objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. A "3" corresponds to objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. A "Total" evaluation corresponds to objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. The retrospective finding of the April 2020 VA examination report was that most cognitive function were within normal limits, and that mildly decreased cognitive communication skills were characterized by a slight decrease in semantic fluency and auditory/visual attention. There was slight difficulty with executive functioning skills, including the ability to organize thoughts and activities, prioritize tasks, manage time effectively, and make decisions. Because testing shows mild impairment, and moderate impairment is not approximated, a "2" is assigned for this facet. 38 C.F.R. § 4.124A. Under Facet 2, relating to judgment, a "2" corresponds to moderately impaired judgment and, for complex or unfamiliar decisions, a usual inability to identify, understand, and weigh the alternatives, to understand the consequences of choices, and to make a reasonable decision, although with little difficulty with simple decisions. A "3" corresponds to moderately severely impaired judgment and, for even routine and familiar decisions, an occasional inability to identify, understand, and weigh the alternatives, to understand the consequences of choices, and to make a reasonable decision. "Total" corresponds to severely impaired judgment and, for even routine and familiar decisions, a usual inability to identify, understand, and weigh the alternatives, to understand the consequences of choices, and to make a reasonable decision. For example, the person is unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. The retrospective finding of the April 2020 VA examination report was mildly impaired judgment characterized by poor executive functioning skills, including the ability to organize thoughts and activities, prioritize tasks, manage time effectively, and make decisions also identified on testing. Because mild impairment is shown, and moderate impairment is not approximated, a level of severity of "1" is assigned for this facet. 38 C.F.R. § 4.124A. Under Facet 3, relating to social interaction, a "0" is assigned for social interaction that is routinely appropriate. This was the retrospective finding of April 2020 VA examination report. The evidence does not approximate a higher level of severity characterized by social interaction that is inappropriate occasionally, frequently, or most or all of the time. 38 C.F.R. § 4.124A. Under Facet 4, relating to orientation, a "0" is assigned based on the Veteran's always being oriented to person, time, place, and situation as found in the April 2020 VA examination report. The evidence does not approximate orientation impairment characterized by occasional disorientation to one or more aspects of orientation. 38 C.F.R. § 4.124A. Under Facet 5, relating to motor activity (with intact motor and sensory system), a "0" is assigned based on the normal motor activity found retrospectively by the April 2020 VA examination report. The evidence does not approximate motor activity that is mildly slowed at times, mildly decreased or with moderate slowing, moderately decreased, or severely decreased due to apraxia. 38 C.F.R. § 4.124A. Under Facet 6, relating to visual space orientation, a "1" is assigned for the Veteran's mild impairment. The retrospective finding of the April 2020 VA examination report was that the Veteran occasionally gets lost but is able to appropriately use assistive devices such as a global positioning system (GPS). The evidence does not approximate impairment that is moderate (characterized by usually becoming lost in unfamiliar surroundings and having difficulty reading maps, following directions, judging distance, and using assistive devices such as GPS) or moderately severely (gets lost even in familiar surroundings and is unable to use GPS). 38 C.F.R. § 4.124A. Under Facet 7, relating to subjective symptoms, a "0" corresponds to 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 or mild anxiety). A "1" corresponds to three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships (examples are intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). A "2" corresponds to three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living; or work, family, or other close relationships (examples marked fatigability, blurred or double vision, headaches requiring rest periods during most days). For the entire period of October 23, 2008 to March 11, 2017, the subjective symptoms facet will not be used a basis for rating the residuals of TBI. A rating decision of January 2021 granted service connection for tension headaches from October 23, 2008, with an evaluation of 0 percent, and for migraine headaches, from December 5, 2020, with an evaluation of 30 percent. The subjective symptoms facet cannot be used to support the TBI evaluation, because the headache symptom is being used to support an evaluation for the separate headache disability. The 40-percent evaluation for this period is warranted for peripheral vestibular disorder with residuals of TBI utilizing other facets of the TBI. Based on a September 2016 VA examination report and other record evidence, the Veteran has a distinct, comorbid diagnosis of a headache disorder. A separate evaluation may be assigned for headaches as long as the manifestations do not overlap with those used to assign the evaluation of the "facets" of the traumatic brain injury. Separately service-connecting multiple conditions based on overlapping symptomology and/or evaluation criteria is not permitted. Here, evaluating the migraine headaches separately allows for the most favorable combined evaluation. 38 C.F.R. § 4.2, 4.6, 4.14, 4.120, 4.124A. In a section below, the Board addresses the issue of entitlement to a higher rating for service- connected headaches. Under Facet 8, relating to neurobehavioral effects, a ""0" corresponds to one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction (examples include irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, and physical aggression). A "1" corresponds to one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. The retrospective finding of the April 2020 VA examination report was that the Veteran has one or more neurobehavioral effects, including fatigue, irritability, and other frontal deficits that occasionally interfere with workplace and/or social interactions, but do not preclude them. Therefore, a "1" is assigned for this facet. A preponderance of the evidence is against finding one or more neurobehavioral effects that more frequently interfere with workplace interaction, social interaction, or both or preclude them. 38 C.F.R. § 4.124A. Under Facet 9, relating to communication, a "0" corresponds to an ability to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. A "1" corresponds to a comprehension or expression, or both, of either spoken language or written language that is only occasionally impaired and an ability to communicate complex ideas. A"2" corresponds to an 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, and generally an ability to communicate complex ideas. A "3" corresponds to an 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. There may be reliance on gestures or other alternative modes of communication, and basic needs can be communicated. A"Total" evaluation corresponds to a complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both, and no ability to communicate basic needs. The retrospective finding of the April 2020 VA examination report was that comprehension or expression, or both, spoken language or written language was only occasionally impaired. The Veteran reported difficulty with stuttering and word-finding. Upon speech therapy evaluation, he demonstrated infrequent repetition of initial phonemes with no repetition of syllables or phrases or secondary characteristics noted. Testing also identified deficits in semantic verbal fluency. This symptomatology corresponds to a "1." A preponderance of the evidence is against finding an inability to communicate or comprehend language more than occasionally but less than half of the time. 38 C.F.R. § 4.124A. Under Facet 10, relating to consciousness, a "Total" evaluation corresponds to a persistently altered state of consciousness, such as vegetative state, minimally responsive state, or coma. The retrospective finding of the April 2020 VA examination report was that consciousness was normal. Therefore, there is no level of impairment for this facet. The Veteran, as a layperson, is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The lay testimony, including the Veteran's reported history to examiners and clinicians, has been considered with the examination evidence in evaluating the severity of the disability symptoms. Upon review of the retrospective VA medical opinion of April 2020 and review of the entire record, the Board determines that "2" is the highest level of severity for the TBI residuals under the Table. This is based on the "2" assigned for the facet of memory, attention, concentration, concentration, and executive functions and corresponds to a 40-percent rating. 38 C.F.R. § 4.124A, DC 8045. A preponderance of the evidence is against finding a level of severity higher than a "2" for any facet. 5. Entitlement to an evaluation in excess to 30 percent from August 11, 2004 until March 11, 2017 for post-concussive syndrome with anxiety and depression (now evaluated as neurocognitive disorder with unspecified anxiety disorder) associated with peripheral vestibular disorder with residuals of traumatic brain injury (TBI). A rating decision of July 2012 granted service connection for post concussive syndrome with anxiety and depression, with an evaluation of 30 percent, effective August 11, 2004. A rating decision of July 2017 granted service connection for mild neurocognitive disorder with unspecified anxiety disorder, with a 40-percent rating, effective March 11, 2017. The separate evaluation for post concussive syndrome with anxiety and depression was discontinued effective March 11, 2017. and the symptoms were evaluated as neurocognitive disorder with unspecified anxiety disorder. The criteria for evaluating mental disorders under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, are detailed in the above section relating to the rating for the Veteran's mild neurocognitive disorder with unspecified anxiety disorder. A March 2006 general medical examination by Dr. J. B. notes the Veteran's problems with falling asleep at night. He was found to have a dysthymic disturbance under the DSM-IV, with symptoms of quick "exhaustability," problems with short-term retaining, rapid misunderstanding of social interactions, and rapidly arising discontent and annoyance. A May 2007 record of Dr. R. S. notes that the Veteran presented with significant speech dysfunction, impaired memory, headaches, dizziness, fatigue, irritability, and anger, low energy, low self-esteem, poor concentration, difficulty making decisions, feelings of hopelessness, anxiety symptoms, and depressive symptoms. A June 2009 record of Dr. J. B. notes that the Veteran, at examination, was dressed simply and neatly and was friendly and responsive. He appeared shy and uncertain. There was significant stuttering and repeated instances of relatively elevated psychomotor function, with swinging of the legs or fidgeting. In terms of mood, he did not appear "reduced;" rather, his affect was tense. Impulses were well-controlled. No mental deficits could be identified in the scope of the conversation, and, in the course of a one-hour meeting, there was no sign of exhaustion. The diagnosis was mild organic brain syndrome after bifrontal cerebral concussion as a result of a traumatic brain injury in 2002. The Veteran was considered to be restricted by his reduced adaptability, drive reduction, and diminished psychosocial stamina. A June 2012 record of Dr. J. B. notes the Veteran's report of depression. He worked as a building superintendent, typically from 8 AM (after getting his son ready for school) until 3:00 PM, after which he relaxed or did housework. He met with friends about once per month. His hobbies were watching sports on television and going to soccer games. Nonetheless, the Veteran also reported a loss of interest and joy in all activities. The examiner found him to be open and cooperative. Memory difficulties and stuttering were noted to make communication more difficult. During the examination, no impairment in consciousness was confirmed. The Veteran was oriented to place, time, person, and situation. Memory and attention abilities were limited "from an external perspective," and concentration problems were apparent. The thought process was formally and contextually undisturbed. There were no delusions or hallucinations and no ego disorder. The Veteran appeared slightly nervous. The Veteran was noted to have rapid onset of fatigue, sleep disturbances, headaches, depressive symptoms, and affective lability. He was quick in becoming irritated and aggressive (reactions to jokes). Dr. J. B. determined that the symptoms "significantly impair [the Veteran] socially and occupationally." The DSM-IV diagnosis was post-concussion syndrome secondary to traumatic brain injury. The criteria for a diagnosis of major depression and sleep apnea syndrome were not met. For the period August 11, 2004 to March 11, 2017, the medical and lay evidence indicates symptoms mainly of irritability, sleep difficulties, fatigue, concentration difficulties, anxiety, feeling of hopelessness, and depression. The symptoms are not on a par with those indicative of a higher, 50-percent rating under the General Rating Formula for Mental Disorders, such as circumlocutory speech, impaired judgment and abstract thinking, and panic attacks more than once a week. 38 C.F.R. § 4.125, 38 C.F.R. §§ 4.126, 4.130. Because the criteria of a higher rating are not approximated in the relevant period, the claim must be denied. A preponderance of the evidence is against the claim. In accordance with Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Board has not limited its analysis to the symptoms listed in the General Rating Formula as examples for each incremental rating. 6. Entitlement to a rating in excess of 10 percent for peripheral vestibular disorder with residuals of TBI from December 5, 2020. A rating decision of January 2021 granted a separate evaluation for peripheral vestibular disorder with residuals of traumatic brain injury (TBI). A 10-percent rating was assigned, effective December 5, 2020, under 38 C.F.R. § 4.87, DC 6204, relating to peripheral vestibular disorders. Under DC 6204, a 10-percent disability rating is warranted for occasional dizziness; and a 30-percent rating is warranted for dizziness and occasional staggering. In January 2021, the Veteran underwent a VA examination for ear conditions. The diagnosis was peripheral vestibular disorder for which the only noted symptom was vertigo that occurs more than once weekly and lasts less than one hour. Because occasional staggering was not found, a preponderance of the evidence is against finding entitlement to a higher, 30-percent rating for this separately diagnosed residual of TBI. Rating this separately diagnosed disorder under the subjective symptoms facet of the Table would not be more advantageous to the Veteran, because headaches (for which the Veteran has been granted a separate evaluation) could not be included with dizziness (vertigo) as a subjective symptom. Furthermore, under the pre-October 23, 2008 regulations, a rating in excess of 10 percent was not awarded for purely subjective complaints, and purely neurological complaints were to be rated under the diagnostic codes specifically dealing with those disabilities. 38 C.F.R. § 4.124a, DC 8045(2008). The Board notes that a rating decision of January 2021 granted service connection for tinnitus associated with mild neurocognitive disorder with unspecified anxiety disorder. A 10-percent evaluation, effective August 6, 2020, was established. Pursuant to Note (1) to 38 C.F.R. § 4.87, a separate evaluation for tinnitus may be combined with DCs 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. REASONS FOR REMAND 7. Entitlement to a rating in excess of 10 percent for right retropatellar pain syndrome. In November 2003, the Veteran filed a service-connection claim for a right knee disorder. A rating decision of August 2004 granted service connection for right retropatellar pain syndrome. A noncompensable evaluation, effective August 11, 2004, was established. The Veteran appealed as to the assigned rating by filing a NOD in November 2004 and VA Form 9 in May 2006. A rating decision of November 2011 increased the rating from 0 percent to 10 percent, effective August 11, 2004. By an order of March 2018, the Board denied entitlement to a rating in excess of 10 percent. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC), which in December 2018, on the basis of a Joint Motion for Partial Remand (JMPR), vacated the denial and remanded the matter to the Board for further consideration. In August 2019, the Board remanded the issue for a VA medical examination. The Board's order explained that, as outlined in the JMPR, the September 2016 VA examination was inadequate for three reasons. First, the examination report did not include weight- bearing and non-weight-bearing testing for pain on both active and passive motion that satisfied the requirements of 38C.F.R. §4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016). Second, while the examination report indicated that there were no imaging studies of the Veteran's right knee, orthopedic reports of July 2006, June 2009, and June 2012 referred to x-rays and sonograms of the knee. Third, the September 2016 VA examiner failed to follow the instructions on the examination form to explain the findings and reasons for any diagnosis that differs from a previous diagnosis for the condition. Specifically, the examiner did not address the June 2012 orthopedic examination (which diagnosed femoral-patellar pain syndrome with patella chondropathy on the right and chronic quadriceps tendinitis on the right), the June 2009 orthopedic examination (which diagnosed femoropatellar syndrome due to chondromalacia on the right), or the July 2006 orthopedic examination (which diagnosed with bilateral patellar chondropathy with medial sub-instability and femur/patellar dysplasia in both knee joints). The Board's remand specifically required a VA examiner for the knees to clearly identify any pertinent imaging and current right-knee diagnoses and, if applicable, to explain any changes from prior diagnoses identified in the record pursuant to the instructions of the disability benefit questionnaire (DBQ). The Veteran underwent a VA examination for the knees in December 2020. Only one diagnosis was noted: a 1998 diagnosis of retropatellar pain syndrome of the right knee. Although specifically instructed to do so by the Board's remand order and the form instructions, the examiner did not identify or explain the different diagnoses of record for the right knee. In addition, despite the record evidence of imaging referenced above, the examination report found that no imaging studies of the knee had been performed. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the development outlined by the Board in its August 2019 remand has not been completed, the Board will remand for a new VA examination. 8. Entitlement to special monthly compensation. In rating residuals of traumatic brain injury, VA must consider the need for special monthly compensation (SMC) for such problems as the loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. 38 C.F.R. § 4.124a, DC 8045. SMC may be granted, among other reasons, on the basis that a veteran needs regular aid and attendance to perform the personal functions of daily living; has a single service-connected disability rated as 100-percent disabling and other service-connected disability(ies) that involve a different bodily system than that upon which the 100-percent disability is based and that are rated at a combined disability rating of 60 percent or higher; or has a single service-connected disability rated as 100 percent disabling and is permanently housebound because of a service-connected disability or disabilities. 38 U.S.C. § 1114(d); 38 C.F.R. §§ 3.350(i), 3.352(a). Because the AOJ has not considered SMC entitlement, the issue will be remanded for consideration in the first instance, thus preserving the Veteran's right to one review on appeal. 38 U.S.C. § 7104(a). The issue is also inextricably intertwined with the remanded issue of entitlement to an increased rating for service-connected right retropatellar pain syndrome. The matter is REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding, identified private medical records relating to the remanded issues and any outstanding VA treatment records. All efforts to obtain such records should be documented in the record. 2. Undertake any appropriate development with respect to entitlement to special monthly compensation based on aid and attendance or housebound status. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner must fully describe the knee disability and report all signs and symptoms necessary for evaluating it under the rating criteria (diagnostic codes) relating to the knee. To the extent possible, the examiner must test the range of motion with pain on active motion, passive motion, with weight-bearing, and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or medically appropriate in this case, the examiner should explain why. The examiner must attempt to elicit information from the Veteran regarding the severity, frequency, and duration of any right knee flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. The examiner must estimate the effect of any functional losses during flare-ups and with repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, and fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically. The additional functional impairment must be expressed in terms of the degree of additional loss of range of motion to the extent possible. Notify the examiner that VA regulations anticipate that examiners, in providing an opinion as to any additional functional loss during flare-ups or with repetitive use over time, will make estimates based on information procured from relevant sources, including lay statements from a veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. This includes ascertaining by alternative means such information as the frequency, duration, characteristics, severity, or functional loss during flare-ups and/or with repetitive use over time. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, repetitive use over time, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record (additional facts are required), or the fact that the examiner does not have the knowledge or training. Notify the examiner that the fact that an examination is not occurring during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate of functional loss during a flare-up or after repeated use over time. Upon review of the Veteran's medical records, the examiner must clearly identify any findings of imaging of the right knee. In this regard, the examiner must acknowledge and, to the extent appropriate, explain the findings relating to the x-rays and/or sonograms that are referenced in orthopedic reports of July 2006, June 2009, and June 2012. If the Veteran's medical history indicates that a diagnosis relating to the right knee has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. In this regard, the examiner must discuss the following diagnoses of record: right retropatellar pain syndrome (VA examinations of September 2016 and December 2020); femoropatellar pain syndrome secondary to right chondromalacia patellae, chronic right quadriceps tendon tendonitis (June 2012 orthopedic examination); femoropatellar syndrome due to chondromalacia on the right (June 2009 orthopedic examination); and bilateral patellar chondropathy with medial sub-instability and femur/patellar dysplasia in both knee joints (July 2006 orthopedic examination) 4. After the above development and any other warranted action has been completed, readjudicate the issues on appeal. If a sought benefit is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.