Citation Nr: 21042783 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-55 727 DATE: July 13, 2021 ORDER A disability rating in excess of 10 percent for the service-connected traumatic brain injury (TBI) is denied. A disability rating in excess of 40 percent to the service-connected right foot drop is denied. A total disability rating based on individual unemployability (TDIU) due service-connected disabilities is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected TBI did not manifest in higher than level "one" impairment on the table of facets. 2. Throughout the period on appeal, the Veteran's service-connected right foot drop manifested in mild incomplete popliteal nerve paralysis with no other nerve involvement, with symptoms such as mild incomplete paralysis and moderate numbness, and corresponding to the highest possible schedular rating which has already been awarded. 3. Throughout the period on appeal, the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.102, 4.124a, Diagnostic Code (DC) 8045. 2. The criteria for the assignment of a disability rating in excess of 40 percent for the service-connected right foot drop have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.6, 4.21, 4.124a, DC 8521. 3. The criteria for entitlement to a TDIU have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1974 to December 1982. This matter is before the Board of Veterans' Appeals (the Board) on appeal from October 2014 and October 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In January 2020, the Veteran and his attorney appeared before the undersigned Veterans Law Judge for a Board videoconference. The transcript is of record, and it reflects the Veteran's request to withdraw from appellate status the claims of service connection for posttraumatic stress disorder (PTSD) and entitlement to a disability rating in excess of 50 percent for the service-connected headaches. In May 2020, the Board dismissed claims of entitlement to service connection for posttraumatic stress disorder (PTSD), and entitlement to a disability rating in excess of 50 percent for service-connected headaches. The Board remanded the remaining claims of service connection for left foot drop; an increased rating in excess of 10 percent for the service-connected TBI; an increased rating in excess of 40 percent for the service-connected right foot drop; an increased rating in excess of 50 percent for the service-connected migraine headaches; and, entitlement to a TDIU. Following the remand, the RO issued a January 2021 rating decision granting an increased rating to 70 percent for the service-connected depressive disorder, effective from August 14, 2020. Then, in a March 2021 rating decision, the RO granted service connection for left foot drop. As the grant of service connection for left foot drop is a complete grant of benefits sought on appeal with respect to that issue, the claim is no longer before the Board or in appellate status. In March 2021, the RO issued a supplemental statement of the case addressing the remaining increased rating claims (right foot drop, TBI, and depressive disorder) to include the TDIU. Then, in April 2021, the Veteran submitted a VA Form 10182 and elected to opt in to the Appeals Modernization Act (AMA) system, but only with respect to the issue of entitlement to an increased rating for the service-connected depressive disorder, rated as 50 percent disabling prior to August 14, 2020, and rated as 70 percent disabling thereafter. As such, that issue will be addressed under separate cover in an AMA decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating in excess of 10 percent for the service-connected TBI. The Veteran contends that his service-connected TBI is worse than currently rated. The Veteran was assigned an initial 10 percent disability rating under 38 C.F.R. § 4.124a, DC 8045 from September 20, 2013, which he timely appealed. DC 8045 provides evaluation for three main areas of dysfunction that may result from a 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, DC 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." 38 C.F.R. § 4.124a, DC 8045. 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 DC, 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. 38 C.F.R. § 4.124a, DC 8045. 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." 38 C.F.R. § 4.124a, DC 8045. Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate DC: 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. 38 C.F.R. § 4.124a, DC 8045. 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 DC. 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. 38 C.F.R. § 4.124a, DC 8045. The need for special monthly compensation for such problems as 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, or other reason, must be considered. 38 C.F.R. § 4.124a, DC 8045. 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. 38 C.F.R. § 4.124a, DC 8045. 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. 38 C.F.R. § 4.124a, DC 8045, 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. 38 C.F.R. § 4.124a, DC 8045, Note (2). 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. 38 C.F.R. § 4.124a, DC 8045, 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. 38 C.F.R. § 4.124a, DC 8045, Note (4). 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. Impairment of consciousness is assigned a designation of total for persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. 38 C.F.R. § 4.124a, DC 8045. A February 2014 VA brain MRI indicates that the Veteran did not have any acute neurologic event since last examination two months ago. The purpose of the MRI was to rule out a stroke. There were no current acute complaints of sensory or motor change noted. It was noted that the brain is remarkable only for a very few punctate foci of flair hyperintensity in the white matter of the cerebral hemispheres, within normal limits of the Veteran's age. There was also mild cerebellar atrophy. Under impressions, it was noted that there was no gross acute or old infarct, mass, bleed, or midline shift. There were no significant interval changes. In March 2014, the Veteran underwent a VA examination for his claim. He was diagnosed with a TBI which he sustained as a result of a head injury. He reported headaches and pain on the side where he was hit on the head. He also reported his memory going from bad to worse. It was noted that the Veteran's TBI did not require taking continuous medication. The VA examiner evaluated the Veteran symptoms based on the table of facets. It was noted that the Veteran had complaints of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Mild memory was described as difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words, or misplacing items. The Veteran's judgment was normal and his social interactions routinely appropriate. It was noted that he was always oriented to person, time, place, and situation. His motor activity was normal. He was noted to have mildly impaired visual special orientation. The VA examiner noted that the Veteran occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions but is able to use assistive devices such as global positioning system (GPS). The VA examiner concluded that the Veteran's subjective symptoms do not interfere with work, instrumental activities of daily living, family, or other close relationships. There were no neurobehavioral effects noted. It was noted that the Veteran was able to communicate by spoken and written language (expressive communication) and comprehend spoken and written language. His consciousness was described as normal. Under TBI residuals, the Veteran was noted to have headaches. There were no scars or other pertinent findings. The VA examiner concluded that the Veteran's TBI did not have a functional impact on his ability to work. A June 2014 VA brain MRI report indicates that the ventricles and sulci are normal with no evidence of recent infarct. The report states that are no areas of mass effect or hemorrhage and that there are no extra-axial blood or fluid collections. The report also states that there are a few punctate foci of hyperintensity in the bilateral cerebral white matter, as noted on the prior examination, nonspecific, likely within normal limits for the patient's age or possibly secondary to minimal microvascular deep white matter ischemic change. It was noted that there is no mass effect or midline shift and that the right maxillary sinus shows a probable mucus retention cyst. Impressions indicate no acute intracranial processes and no evidence of recent or gross old infarct. A March 2016 VA neuropsychological evaluation indicates that the Veteran reported worsening cognitive decline, such as forgetting names, dates, and occasionally misplacing objects. He also reported trouble focusing which is exacerbated by high pain levels. The Veteran reported difficulty with comprehension as a result of poor concentration. He reported problems multitasking and shifting attention. At the conclusion of the Veteran's assessment, it was noted that his neuropsychological profile is largely intact and not suggestive of a neurogenic process at this time. It was noted that the Veteran performed very well on the majority of tasks, with the exception of a weakness in initial encoding, impairment in processing speed, and mild executive weakness. The Veteran's memory was noted to be largely intact. It was also noted that the Veteran's difficulty encoding and processing speed were likely due to the methodical way that he approaches tasks. The evaluation indicates that the Veteran's single executive weakness was poor planning on a complex visual figure. This was noted to be isolated with all other executive functioning intact. It was noted that the Veteran did not meet the diagnostic criteria for a neurocognitive disorder and should be reassured of his capabilities. Finally, it was noted that any subjective cognitive symptoms that the Veteran experienced are likely attributed to his psychiatric disability and not related to his TBI. The Veteran underwent another VA examination in June 2016. The Veteran was diagnosed with a TBI. He reported his current symptoms as headaches, concentration and memory loss, insomnia, and tinnitus. It was noted that the Veteran's TBI did not require continuous medication. There were complaints of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Mild memory was described as difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words, or misplacing items. The Veteran underwent a Montreal Cognitive Assessment (MOCA). His score was perfect for visuo/executive, naming, attention, language, abstraction, and orientation. The VA examiner noted an overall score of 29/30 with a memory score of 3/5. The Veteran's judgment was normal and his social interactions routinely appropriate. It was noted that he was always oriented to person, time, place, and situation. His motor activity and visual spatial orientation were normal. Under subjective symptoms, it was noted that the Veteran had three or more subjective symptoms that interfere with work, instrumental activities of daily living, family, or close relationships. The VA examiner noted that the Veteran reported mild concentration, memory loss, daily headaches, and tinnitus. There were no neurobehavioral effects noted. It was noted that the Veteran was able to communicate by spoken and written language and comprehend spoken and written language. The Veteran's consciousness was normal. Under residuals of the TBI, the VA examiner noted headaches only. There were no other pertinent findings and the Veteran's TBI was not noted to cause functional impact. In June 2017, the Veteran underwent a VA examination for his claim. The Veteran reported his TBI symptoms to be headaches, problems with concentration related to headaches, and stress. It was noted that the Veteran took required continuous medication to treat his headaches. There were complaints of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Mild memory was described as difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words, or misplacing items. The Veteran's judgment, social interaction, orientation, motor activity, and visual spatial orientation were normal. Under subjective symptoms, it was noted that the Veteran had three or more subjective symptoms that interfere with work, instrumental activities of daily living, family, or close relationships. The subjective symptoms included constant headache leading to problems with concentration, and trouble sleeping, which has been attributed to his psychiatric disability. It was noted that the Veteran had balance problems since being treated for prostate cancer. There were no neurobehavioral effects. The Veteran was able to communicate by spoken and written language and comprehend spoken and written language. His consciousness was normal. The VA examiner noted that headaches were a residual of a TBI. The Veteran was assessed under MOCA and scored above the cut off for mild cognitive impairment. Under functional impact, the VA examiner noted that the Veteran's sleep has improved, leaving stress and headaches as conditions that interfere with concentration on a daily basis. The VA examiner also noted that the Veteran worked with the city for 23 years and had to retire because he had become inattentive to detail, which was due to concentration problems. In August 2020, the Veteran underwent a VA examination for his claim. The VA examiner summarized the Veteran's medical history and cited to his records and Board hearing testimony. The VA examiner indicated that there are no significant residuals of a TBI on examination and that mild memory problems did not constitute significant residuals. It was noted that the Veteran subjectively complained of mild memory loss, like having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words and misplacing items. As an example, the Veteran indicated that he tends to misplace his keys, etc. The VA examiner summarized the results of the Veteran's memory testing in support of their conclusion that there was no objective evidence of impairment in memory, attention, concentration, or executive functions despite the Veteran's subjective complaints. The Veteran's judgment, social interaction, orientation, motor activity, and visual spatial orientation were noted to be normal. The VA examiner noted no other subjective symptoms. There were no neurobehavioral effects and it was noted that the Veteran was able to communicate by spoken and written language, as well as comprehend both. The Veteran's consciousness was noted to be normal and the VA examiner indicated that there were no subjective symptoms of any mental, physical or neurological conditions or residuals attributable to a TBI. The VA examiner concluded that the Veteran's disability did not have a functional impact. The VA examiner indicated that they reviewed the Board's May 2020 remand and that there are overlapping symptoms between the Veteran's unspecified depressive disorder and his TBI. The overlapping symptoms included mood problems, depression, anxiety, problems with focusing, with short attention span, getting distracted easily, sleeping disturbances, impatience. The Veteran was quoted stating "I feel emotionally down because I'm dealing with a lot of pain." Applying the rating criteria set out under DC 8045, the medical evidence of record, specifically the March 2014, June 2016, and June 2017 VA examination reports as well as the March 2016 VA neuropsychological evaluation, shows that the Veteran's TBI symptoms are not of such severity as to warrant assignment of a rating in excess of the currently assigned 10 percent. In this regard, none of the ten facets of cognitive impairment and other residuals of TBI not otherwise classified are shown by the evidence in the record to cause a level of impairment greater than 1, as would warrant assignment of a rating greater than 10 percent. See 38 C.F.R. § 4.124a (DC 8045). The March 2014 VA examination report indicated that the Veteran had complaints of mild memory loss and mildly impaired visual special orientation, with all other facets being normal. The June 2016 VA examination report likewise contains complaints of mild memory loss as well as three or more subjective symptoms that interfere with work, instrumental activities of daily living, family, or close relationships. The June 2017 VA examination report contains complaints of mild memory loss with no problems on objective testing and three or more subjective symptoms interfering with work and daily living. The subjective symptoms were listed as constant headaches leading to concentration problems and trouble sleeping. Finally, the August 2020 VA examination report notes complaints of mild memory loss. All of the Veteran's objective testing was normal. His March 2016 VA neuropsychological evaluation indicates that he does not meet the diagnostic criteria for a neurocognitive disorder. In essence, the evidence shows that the Veteran has subjective reports of mild memory loss without supporting objective evidence. His subjective complaints include difficulty following a conversation, remembering names of new acquaintances, finding works, and misplacing items. As noted above, a level 2 is appropriate when the evidence shows three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships; and, 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. In this case, the VA examination reports indicate that the Veteran's subjective symptoms include memory impairment, headaches, and sleeping trouble. However, his headaches are separately rated; thus, to consider the headaches in assigning the separate TBI disability rating would constitute pyramiding (compensating the Veteran twice for the same symptoms), which must be avoided pursuant to 38 C.F.R. § 4.14. Similarly, the Veteran's sleep impairment has been attributed to his service-connected PTSD for which he is separately rated, and the PTSD rating criteria include sleep disturbance/impairment. Thus, taking sleep impairment into consideration when rating the TBI under Diagnostic Code 8045, would likewise constitute pyramiding. With respect to memory impairment, the Veteran's objective testing did not show memory problems that would moderately interfere with his work or daily life. Accordingly, while three or more subjective symptoms were noted on VA examinations, one of the symptoms is considered in a separately rated disability rating, another symptom is attributed to a different disability, and the third symptom does not rise to the level of moderate interference as shown by objective testing. As such, the Veteran's subjective symptoms do not warrant a level 2 impairment under DC 8045, required for a higher rating. Staged ratings have been considered. However, the Veteran's overall disability picture remained largely consistent throughout the period on appeal. Therefore, staged rating are not applicable. Based on the foregoing, the evidence does not show that the criteria for level 2 impairment are more nearly approximated for any individual facet under DC 8045. For that reason, assignment of a disability rating in excess of the currently assigned 10 percent for service-connected post-concussive disorder is not warranted, and the claim is denied. 2. Entitlement to a disability rating in excess of 40 percent for the service-connected right foot drop. The Veteran contends that his service-connected right foot drop warrants a higher rating than currently assigned. The Veteran's disability is rated as 40 percent disabling under 38 C.F.R. § 4.124a, DC 8521 from March 6, 2014. Involvement of the external popliteal/common peroneal nerve is rated under 38 C.F.R. § 4.124a, DC 8521. A 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating contemplates moderate incomplete paralysis, while a 30 percent disability rating contemplates severe incomplete paralysis. A maximum disability rating of 40 percent contemplates complete paralysis as evidenced by: foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a). Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in this portion of the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. A December 2020 VA examination report indicates that the Veteran has mild paresthesias and moderate numbness of the right lower extremity. With respect to nerve involvement, the report indicates that the Veteran has mild incomplete paralysis of the external popliteal nerve. There is no other nerve involvement noted. The report also indicates that the Veteran's bilateral foot drop causes him to have wide gait and regularly use a brace. Finally, the report notes that the Veteran's disability limits the Veteran's standing and walking. As previously noted, under DC 8521, 40 percent is the maximum schedular rating available, and is awarded for complete paralysis and/or foot drop. Accordingly, the Veteran cannot receive a higher schedular rating under the currently assigned diagnostic code. Furthermore, the Board is not aware of the Veteran having contended that an extraschedular rating is warranted in this case and the issue is not addressed. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Other diagnostic codes were considered in this case and are not for application. Specifically, DC 8520 governs impairment of the sciatic nerve and allows for a maximum schedular rating above 40 percent. However, as the December 2020 VA examination report indicates that there is no other nerve involvement, DC 8520 is not for application. The Veteran is in receipt of the maximum schedular rating for his service-connected right foot drop, and the evidence as explained above, shows that the Veteran's symptoms are adequately contemplated by the criteria for the assignment of a 40 percent rating. As there is no evidence of other nerve involvement, a rating in excess of 40 percent is not warranted. 3. Entitlement to a TDIU. The Veteran contends that his service-connected disabilities preclude him from securing or following a substantially gainful occupation. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to the Veteran's age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). For a schedular TDIU, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities include PTSD with depressive disorder, rated as 30 percent disabling from September 20, 2013, as 50 percent disabling from December 12, 2016, and as 70 percent disabling from August 14, 2020; headaches, rated as 30 percent disabling from September 30, 2013, and as 50 percent disabling from June 29, 2016; right foot drop, rated as 40 percent disabling from March 6, 2014; left foot drop, rated as 10 percent disabling from September 16, 2014, and as 20 percent disabling from August 11, 2020; tinnitus, rated as 10 percent disabling from September 20, 2013; TBI, rated as 10 percent disabling from September 20, 2013; syncopal episodes, rated as noncompensable from December 14, 1982; and left ear hearing loss, rated as noncompensable from September 20, 2013. As previously noted, the 70 percent disability rating for the Veteran's service-connected PTSD is currently on appeal. The Veteran's total combined disability rating is 80 percent from March 6, 2014, with at least one service-connected disability rated as 40 percent disabling. Thus, the Veteran's disability ratings meet the schedular threshold percentage requirement for TDIU for the period on appeal. Thus, the remaining question is whether the Veteran's service-connected disabilities precluded all forms of substantially gainful employment consistent with his education and work history. The Veteran's September 2014 VA Form 21-8940 indicates that he last worked full time in December 2013. He was also noted to work part time until August 2014 as a dietary aide. The Veteran was noted to have a high school degree and training in graphics technology and word processing. A June 2016 VA Form 21-4192 from the Veteran's former employer indicates that he last worked in December 2013, at which point he resigned. The Veteran's position is listed as dietary staff. A June 2016 VA examination report for headaches indicates that the Veteran was diagnosed with headaches associated with PTSD. He was noted to have constant head pain, localized to the left side of the head, and worsening with activity. He was also noted to have sensitivity to light and changes in vision. His headaches were noted to last 24 hours per day. He was also noted to have very frequent prostrating and prolonged attacks of migraine headache pain and non-migraine headache pain, with each being more frequent than once per month. The Veteran was noted to use Tylenol treat his headaches, which he reported did not help. The VA examiner concluded that the Veteran's headaches did not impact his ability to work. A November 2016 VA Form 21-8940 indicates that the Veteran has one year of college education. All other pertinent information is the same as previously noted. As previously noted, a June 2017 VA examination report for TBI indicates that the Veteran reported his cognitive problems contributing to the decision to retire from working from the city after 23 years of employment. It was noted that the Veteran became inattentive to detail, and that his stress and headaches continued to interfere with his concentration. The VA examiner indicated that the Veteran would not be able to work in environments with high cognitive demand, as he would not be able to perform adequately and efficiently. An August 2020 VA examination report for psychiatric disabilities indicates that the Veteran has a DSM-5 criteria diagnosis for PTSD, major depressive disorder (MDD), and somatic symptom disorder with predominant pain. The Veteran was noted to have worsening depression. It was noted that the Veteran stopped working after going on permanent social security disability in 2013 and 2014. He reported working 1 to 2 hours per week helping his brother with a security company. The Veteran reported significant problems with work due to pain. He also reported problems with low mood, including not getting out of bed due to low mood and chronic pain. He reported having previously having problems with concentrating, pain, depression, and anxiety. The Veteran's symptoms were listed as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. The VA examiner noted that the examination was performed on video chat and that the Veteran appeared oriented and had somewhat of a stutter and was occasionally tangential when talking. The VA examiner noted normal eye contact, flat and down mood, and logical/focused thought content and process. There were no suicidal or homicidal ideations, and no evidence of delusions or hallucinations. The VA examiner concluded that the Veteran's psychiatric disabilities manifest in occupational and social impairment with reduced reliability and productivity. A December 2020 VA examination report for peripheral nerves indicates that the Veteran has a wide gait due to bilateral foot drop with left being worse than the right. The VA examiner concluded that the Veteran's disabilities impact his ability to work as the Veteran is limited in standing and walking. It was also noted that he regularly wore braces as a result. Based on the above, the evidence supports the finding that the Veteran was unable to obtain or maintain gainful employment due to a combination of his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The question of whether a Veteran is capable of substantial gainful employment is not a medical determination, it is an adjudicatory one. Geib, 733 F.3d at 1354. The weight of the competent and probative evidence of record reflects that the Veteran's service-connected disabilities preclude most forms of substantially gainful employment based on his education and employment history. In this case, the Veteran's service-connected disabilities present both physical and mental limitations. With respect to physical limitations, the Veteran's service-connected headaches, right foot drop, and left foot drop, manifest in chronic pain difficulty with prolonged walking and standing. The June 2016 VA examination report for headaches indicates that the Veteran is in constant pain from his service-connected headaches, and in addition suffers from very frequent prostrating attacks. While the June 2016 VA examiner did conclude that this impacts the Veteran's ability to work, it is reasonable to assume that the Veteran will have difficulty working while having constant headaches which are not alleviated with medication. Further, the December 2020 VA examination report indicates that as a result of the Veteran's bilateral foot drop, he experiences wide gait, uses braces regularly, and has problems with prolonged standing and walking. With respect to the limitations from the Veteran's service-connected PTSD and residuals of TBI, the Veteran reported retiring due to concentration and memory problems he attributes to PTSD. The June 2017 VA examination report for residuals of TBI indicates that the Veteran became inattentive to detail and would have problems performing adequately and efficiently in work environments with high cognitive demand. The August 2020 VA examination report for psychiatric disabilities indicates that the Veteran experiences depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, and neglect of personal appearance and hygiene. The same report indicates that the Veteran's symptoms manifest in occupational and social impairment with reduced reliability and productivity. Thus, the evidence in this case shows that the Veteran's service-connected disabilities produce a plethora of physical and mental limitations that in combination result in the Veteran being unbale to secure and maintain substantially gainful employment. While no single disability precludes employment, a combination of these disabilities precludes both sedentary and other employment. In other words, while the Veteran may be able to perform sedentary employment that doesn't require prolonged walking or standing, his chronic headaches, PTSD, and residuals of TBI will likely preclude employment that requires cognitive skills. Moreover, the evidence suggests that the Veteran may not be able to work around other people as his psychiatric disabilities cause problems with work relationships. The evidence shows that the Veteran has some college education and has an extensive work history working for a municipality. His last job was as a dietician staff. However, when resolving all doubt in the Veteran's favor, the physical and mental limitations caused by the combination of his service-connected disabilities precludes him from maintaining any type of gainful employment despite his education and work history. As the Veteran's service-connected disabilities render him unable to obtain and maintain full-time employment, a TDIU is warranted for the entire period on appeal. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.