Citation Nr: 22018748 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-30 420 DATE: March 30, 2022 ORDER 1. Entitlement to service connection for chronic lymphocytic leukemia, to include as due to exposure to herbicide agents and/or other toxic substances, is denied. 2. Entitlement to an initial rating in excess of 40 percent for residuals of a traumatic brain injury (TBI), to include on an extraschedular basis, prior to December 12, 2019, is denied. REMANDED 3. Entitlement to service connection for headaches, to include as secondary to residuals of a TBI and/or a disfiguring and unstable scar above the right eye, is remanded. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU), to include on an extraschedular basis prior to December 12, 2019, is remanded. FINDINGS OF FACT 1. The evidence persuasively weighs against a finding that chronic lymphocytic leukemia manifested during service or within one year after discharge from service, nor is it otherwise related to service, to include as the result of exposure to herbicide agents or other toxic substances 2. Prior to December 12, 2019, the residuals of a TBI have not been manifested by greater than Level 2 impairment of any cognitive functions. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic lymphocytic leukemia, to include as due to exposure to herbicide agents and/or other toxic substances, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5017; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to an initial rating in excess of 40 percent for residuals of a TBI, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to August 1980, from July 1983 to November 1983, and from September 1988 to August 1990. The Veteran and his wife testified at a Board of Veterans' Appeals (Board) video conference hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing was prepared and associated with the claims file. The Board denied the within claims in a November 2020 decision that also addressed several other issues not presently before the Board. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Partial Remand (Joint Motion) vacating the portions of the November 2020 Board decision that are addressed herein and remanding the matters for readjudication. The Court granted the Joint Motion later in the same week. Within the Joint Motion, the parties agreed that remand on the issue of entitlement to an increased rating for TBI prior to December 12, 2019 was warranted because the Board erred when it failed to provide an adequate statement of reasons or bases for its denial, by not addressing certain evidence describing the Veteran's symptoms during the relevant period. The parties also stated that remand on the issue of entitlement to service connection for chronic lymphocytic leukemia was warranted because the Board did not specifically discuss evidence submitted by the Veteran, including articles, in support of his allegation of exposure to herbicides. The parties further agreed that remand on the issue of entitlement to service connection for headaches was warranted to obtain an adequate medical opinion because the December 2019 examination on which the Board relied did not provide a rationale as to why the Veteran's headaches are not caused or aggravated by a facial scar above the Veteran's right eye. Finally, the parties indicated that remand on the issue of entitlement to TDIU was necessary because the Board did not discuss or explain how the Veteran's educational and occupational history translates into stated jobs performing data entry or telemarketing, as indicated in the Board's decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Service connection for chronic lymphocytic leukemia, to include as due to exposure to herbicide agents and/or other toxic substances The Veteran believes that his chronic lymphocytic leukemia was caused or aggravated by exposure to Agent Orange and other herbicides or chemicals in the water supply at Fort McClellan. The Board has carefully reviewed the evidence of record and finds that the evidence is persuasively against the claim for service connection for chronic lymphocytic leukemia. The reasons follow. The first element of service connection requires a current disability. The Veteran was diagnosed with chronic lymphocytic leukemia in April 2013. Therefore, the facts establish that the first element of a service-connection claim is met. As to the Veteran's claim that he was exposed to herbicides, including Agent Orange, while serving at Fort McClellan, the Veteran reports that he served at Fort McClellan on two, separate occasions. The first, he testified was from September to December 1977 for military police training. The Veteran's military personnel records document that the Veteran served at Fort McClellan in 1977. Second, the Veteran reported being stationed at Fort McClellan for three weeks in the Spring of 1989 for weapons training, which is supported by the Veteran's military personnel record. The Veteran testified at the August 2018 video conference hearing that he remembered the water at Fort McClellan tasting like rusty well water but that they had no choice but to drink it. He also reported in June 2013 that he remembered that the ranges at Fort McClellan were rocky and dirt-covered with no vegetation growing. The Veteran submitted numerous articles supporting his contention that Fort McClellan could have exposed him to toxic substances and herbicides, including Agent Orange, as noted in the July 2021 Joint Motion. A VA internet-source report noted that some members of the U.S. Army Chemical Corp School, Army Combat Development Command Chemical/Biological/Radiological Agency, Army Military Police School, and Women's Army Corps, among others, may have been exposed to one or more of several hazardous materials, likely at low levels, during their service at Fort McClellan. Potential exposures could have included, but are not limited to: radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base, chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base, and airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town. Although exposures to high levels of these compounds had been shown to cause a variety of adverse health effects in humans and laboratory animals, there was no evidence of exposures of this magnitude having occurred at Fort McClellan. It was noted that there were currently no adverse health conditions associated with service at Fort McClellan. Specifically, the report stated: From 1929 to 1971, an off-post Monsanto chemical plant operated south of Fort McClellan in Anniston. PCBs from the plant entered into the environment, and the surrounding community was exposed. Since the 1990s, several investigations have been conducted to characterize the exposure of Anniston residents to PCBs from the Monsanto plant. In 2015, the Agency for Toxic Substances and Disease Registry (ATSDR) published an assessment of the potential health risks caused by airborne PCBs in Anniston and concluded that the concentrations found were "not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside of the perimeter of the former PCT manufacturing facility." Accordingly, the Board does not find that the Veteran was exposed to herbicide agents or other toxic chemicals in Fort McClellan. The Veteran's first period of service at Fort McClellan was not until 1977, approximately six years after the plant ceased operation. The three weeks that the Veteran was stationed at Fort McClellan in 1989 did not occur until approximately 18 years after the plant ceased operation. The Board cannot concede herbicide exposure on a presumptive basis if VA does not concede herbicide exposure at a particular location, such as Fort McClellan. As such, the Board finds that service connection on a presumptive basis due to exposure to herbicide agents or other toxic chemicals is not applicable, and entitlement to service connection on a presumptive basis based upon herbicide exposure and on the basis of direct exposure under these theories of entitlement is denied. As noted above, the Board finds the weight of the competent and credible evidence is against a finding that the Veteran was exposed to herbicide agents or other toxic substances during service. As a result, any lay assertions of such exposure cannot serve as an in-service event or injury for the Veteran's service-connection claim. The Board will now address other theories of entitlement. Where a veteran served 90 days or more of active service, and certain chronic diseases, such as leukemia, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). However, the Veteran was not diagnosed with chronic lymphocytic leukemia until April 2013, which is more than 20 years after his discharge from active service. Thus, service connection based on a chronic disease presumption under 38 C.F.R. § 3.307 is not warranted. Finally, service connection for chronic lymphocytic leukemia is also denied on a direct basis as the service treatment records do not show, and the Veteran does not contend, that the chronic lymphocytic leukemia had an onset during service, and there is no competent evidence of a nexus between the diagnosis of chronic lymphocytic leukemia and the Veteran's service. The Board could concede herbicide exposure on a direct basis if the evidence establishes as fact that the Veteran was exposed to herbicide agents or toxic chemicals; however, such evidence is not present in this matter. Service treatment records do not reflect evidence indicative of leukemia, or exposure to herbicide agents which the Veteran contends is responsible for his condition. In a July 1990 Report of Medical History and Report of Medical Examination, one month prior to the Veteran's separation from active duty, the Veteran received normal clinical evaluations of the heart, lungs and chest, vascular system, endocrine system, lymphatics, and neurologic functioning. The Veteran reported that he was in excellent health and taking no medication. As stated, the Veteran was not diagnosed with leukemia until more than two decades after his discharge from active duty service. To the extent that the Veteran believes there is a relationship between the diagnosis of chronic lymphocytic leukemia and service apart from the alleged herbicide exposure, he is not competent to directly link the diagnosis to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. While the Veteran is competent to report his recollection of the water and vegetation at Fort McLellan, he is not competent to make an etiological conclusion linking those things and his present condition, which was not diagnosed until more than two decades after the Veteran's service. For all the reasons stated above, the evidence is persuasively against the Veteran's claim of entitlement to service connection on a direct basis. VA has not provided the Veteran with an examination or opinion in connection with this claim for service connection. VA must provide a medical examination and/or an opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the evidence does not show that an event, injury, or disease occurred in service, as the Board does not find that the Veteran had herbicide exposure while stationed at Fort McClellan. The Board also finds that the evidence does not establish that the current disability may be associated with the Veteran's service. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one element is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for chronic lymphocytic leukemia is denied. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3.Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire appeal period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established an increase in the disability rating is at issue, it is the present level of disability that is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 2. Increased rating for residuals of TBI The Veteran is in receipt of a 40 percent disability rating under DC 8045 for residuals of a TBI prior to December 12, 2019. DC 8045 provides evaluations for three main areas of dysfunction that may result from TBI and have profound effects on functioning: Cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these 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 a given 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." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, is 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. Emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Regarding cognitive impairment and subjective symptoms, the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. They are: memory/attention/concentration/executive function; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. The table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. A100-percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation assigned is 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, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): 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 diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. The Board has carefully reviewed the evidence of record and finds that an initial evaluation in excess of 40 percent prior to December 12, 2019 for residuals of a TBI is not warranted. The reasons follow. An April 2014 VA treatment record documents that the Veteran's mental status was standard, with attention, memory, perception, and problem solving all documented as normal. The Veteran reported episodes of syncope or vertigo. The Veteran was provided a VA examination in April 2014. The examiner diagnosed the Veteran with a TBI. The Veteran described episodes of syncope and/or vertigo with dizziness and shifting vision that, at times, progressed to a loss of consciousness. The examiner noted it was unclear whether the Veteran had symptoms of both vertigo and syncope or whether the Veteran was describing one symptom that presented differently at times. The examiner wrote that the Veteran did not report other specific symptoms that he associated with the TBI, and he noted that the Veteran's medication assisted with these symptoms. A neuropsychiatric screen did not show significant cognitive difficulties. The Veteran had average immediate memory, language, and attention; high average visuospatial/constructional; and low average delayed memory. The examiner documented that the Veteran was fully alert, and oriented with good judgment and no homicidal or suicidal ideation at the time of the examination, though the Veteran reported that when he has an episode, he had a loss of orientation to place or time or situation. His communication was clear and goal-directed, though he reported occasionally struggling to find the correct words to express his thoughts. Health questionnaires for depression and a generalized anxiety disorder were negative, and the Veteran denied symptoms of depression or anxiety. Motor activity was within normal limits and his visual spatial orientation was intact. The Veteran denied subjective symptoms other than occasional dizziness. Social interactions were noted to be non-problematic and were routinely appropriate, and his motor activity was normal. The Veteran had mildly impaired visual spatial orientation, noting that when driving he sometimes got lost driving home. The examiner documented three or more subjective symptoms that mildly interfere with work, activities of daily living, or family or other relationships, but when asked to describe those subjective symptoms, the examiner only noted that the Veteran's symptoms did not interfere with his work but that when driving home, his symptoms may interfere with driving. The only residuals of a TBI were speech deficits and dizziness/vertigo. Another VA examination for TBI was conducted in June 2015.The Veteran reported mild memory loss, noting that he would forget names, get up from a chair and forget why, and cry every day without knowing why. The examiner documented that the Veteran was fully oriented with normal judgment, motor activity, social interaction, and visual spatial orientation. The Veteran exhibited subjective symptoms, including vertigo and dissociative symptoms that lasted a few seconds to 12 minutes, but they did not interfere with his work, activities of daily living, or his relationships and most often occurred when driving or going around sharp curves. The examiner documented no neurobehavioral effects, noting the Veteran was able to communicate and comprehend spoken and written language, had normal consciousness, and had no subjective symptoms of mental, physical, or neurological conditions. Neuropsychological testing was within normal limits, and the examiner documented the Veteran performed better at this examination than he had at the 2014 VA examination. The examiner noted the Veteran may be experiencing mild symptoms of anxiety but not depression, and no mental health disorder was diagnosed. The examiner wrote that the Veteran did not exhibit any objective residuals. As to the subjective symptoms of dizziness and fainting spells, the examiner opined that these symptoms were not related to the Veteran's in-service TBI as those symptoms had been occurring prior to service, per the service treatment records. An addendum to the neuropsychological evaluation was added in June 2015. The examiner noted that the Veteran's biggest complaint was a loss of memory, as he had reported difficulty with forgetting recent conversations and events, misplacing things, repeating himself, getting lost in familiar areas, entering a room and forgetting his purpose, and not fully listening to people. He also reported that he had stopped driving in May 2015 due to episodes of altered consciousness. The examiner reiterated that the Veteran's mental health history was unremarkable with no significant residual neurocognitive deficits, and that he had average to high average neurocognitive functions. The examiner opined that the Veteran's subjective complaints of memory loss are more likely due to a combination of normal aging and fatigue. On the August 2015 VA Form 9, Appeal to the Board, wherein the Veteran appealed the initial rating for the TBI, the Veteran reported that he was experiencing vertigo on a daily basis, noting that the episodes came without warning. VA treatment records from July 2018 document the Veteran "blanked out" for six hours, noting that he had never had an episode last that long prior to this instance. At the August 2018 hearing, the Veteran testified that he has periods of lost time, which he described as a black out, that typically last an hour or two. He testified he had been experiencing these episodes for over 20 years. He testified that these episodes happen at least once a week or when he is driving, though he reported that he does not drive anymore. October 2018 VA treatment records document the Veteran reported an episode at a birthday party in which he could not hear, had a headache, and had a conversation with his daughter that he does not remember. VA treatment records from July 2019 document that the Veteran reported experiencing episodes where he started stuttering and cannot talk. He reported an episode the previous month while he was walking his dog during which he fell and sat on the ground for an extended period and did not know where he was. He reported to the treatment provider that these episodes frequently happened after eating candy, and he noticed a correlation between his blood sugar dropping and these episodes. The Board notes that the Veteran has a diagnosis of diabetes mellitus, which is not service connected. Despite these reports, the Veteran's treatment records predominantly reflect the Veteran to be oriented throughout the relevant period. A final VA examination was conducted in December 2019. The Veteran reported that he would have episodes while driving. He also reported episodes of lost time. He reported symptoms every day that vary in severitynoting that he often got dizzy while walking or watching television. He reported that he would feel like he was falling when laying on his back. The examiner documented mild memory loss, attention, concentration or executive function per the Veteran's subjective reports. The examiner documented the Veteran's social interaction was routinely appropriate, motor activity and visual spatial orientation was normal, and he was fully oriented. The Veteran reported three or more subjective symptoms that mildly interfere with work and instrumental activities of daily living, including the room spinning with position changes, daily headaches, and tinnitus. The examiner documented that the Veteran did not exhibit neurobehavioral effects, his consciousness was normal, and he was able to communicate and comprehend written and spoken language. The Veteran reported that he no longer liked to leave home or take long drives because of the blackout episodes. Cognitive testing conducted by VA in December 2019 documented objective evidence of moderate impairment of memory, concentration, or executive functions, resulting in moderate functional impairment. The Veteran's judgment, motor activity, and visual spatial orientation were normal, and his social interactions were routinely appropriate. The Veteran was documented to be fully oriented. The Veteran reported subjective symptoms of dizziness, headaches, tinnitus, hypersensitivity to light, and falls. The Veteran described neurobehavioral effects including frustration and cognitive inflexibility, but he was able to communicate and comprehend written and spoken language. A persistent altered state of consciousness was noted as the Veteran reported episodes in which he lost minutes or hours of time two to three times per week. It was also documented that the Veteran had impaired cognitive function as he has difficulty with executive functioning, memory, consciousness, headaches, and dizziness. The examiner documented that no mental health condition was suspected as a residual of a TBI. Records from the Social Security Administration (SSA) document that the Veteran has no severe mental impairment and no diagnosis of a mental health disorder. SSA records also documented that the Veteran's neurocognitive functions are fully intact. Under 38 C.F.R. § 4.124a, DC 8045, any evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of a TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of a TBI are evaluated separately. An increased rating of 70 percent or higher prior to December 2019 would require a "3" to be assigned as the highest level of any one facet, or a "total" evaluation to be assigned for one or more facets. As will be detailed below, the highest level of severity for any facet during this period on appeal is "2" under the criteria; therefore, a rating in excess of 40 percent is denied. To facilitate understanding, the Board will go through each of the 10 facets of cognitive impairment. (1) Memory, Attention, Concentration, and Executive Functions The Veteran has reported experiencing episodes in which he experiences memory lapses that may last multiple hours. Additionally, the Veteran has consistently reported mild memory loss, such as difficulty finding the correct words in conversations, as mentioned above. However, cognitive testing of the Veteran's memory has not indicated the Veteran's memory function to be abnormal. At the April 2014 VA examination, the examiner noted that the Veteran had mild memory loss, immediate memory was average, attention was average, and his delayed memory was low average. At the June 2015 VA examination, it was documented that testing of the Veteran's memory, concentration, attention, and executive functions were better than they were at the April 2014 VA examination. The Veteran, at that examination, still reported mild memory loss, such as forgetting names, crying every day without knowing why, and getting up from a chair and forgetting why. While the Board acknowledges that the Veteran is experiencing some mild deficits with memory, attention, concentration, and executive functions, these symptoms do not rise to the level of moderate, as is required for a Level 3 impairment. Thus, a Level 2 impairment is assigned for this facet prior to December 2019. (2) (5) Judgment, Social Interaction, Motor Activity, and Communication In July 2019, the Veteran reported experiencing episodes where he begins to stutter or cannot talk. However, treatment records during this period do not document observation of a stutter or an inability to speak. The Veteran was routinely able to communicate effectively and appropriately with treatment providers. At both the April 2014 and June 2015 VA examinations, the Veteran's judgment, motor activity, and visual spatial orientation were documented to be normal, indicative of Level 0 impairment. Social interaction was documented to be routinely appropriate, which is also indicative of Level 0 impairment. As to communication, both the April 2014 and June 2015 VA examinations document the Veteran was able to speak and comprehend spoken and written language, indicative of a Level 0 impairment. Even after the Veteran's July 2019 reports of stuttering and speech difficulties, the Veteran's judgment, motor activity, and visual spatial orientation were documented to be normal during his December 2019 VA examination, indicative of a Level 0 impairment for each facet. As for communication, both the December 2019 VA examination and associated cognitive testing documented the Veteran was able to communicate and comprehend written and spoken language, indicative of a Level 0 impairment for this facet. To the extent that the Veteran reported stuttering and speech difficulties at times, the record does not support that such symptoms rose to a level of severity warranting a Level 3 impairment to support an increased disability rating prior to December 2019. A Level 3 impairment for communication is warranted for an inability to communicate either by spoken language, written language or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. The record does not indicate that the Veteran is unable to communicate by spoken language at least half the time. Treatment records routinely reflect the Veteran's ability to communicate verbally, and the Veteran's reporting of symptoms did not indicate such episodes to last for extended durations equivalent to half the time. Thus, this area is characterized by no worse than Level 2 impairment prior to December 12, 2019. (6) (7) Orientation and Consciousness At the April 2014 VA examination, the Veteran was documented to be fully oriented at the time of the examination. However, the examiner acknowledged that due to the Veteran's episodes, which the Veteran describes as periods of time in which he is blanked out, the Veteran was occasionally disoriented to two of the four aspects. However, occasional disorientation to two of four aspects of orientation is only indicative of a Level 2 impairment, not a level 3 impairment. At the June 2015 VA examination the Veteran was noted to be always fully oriented, though his reports of blank out episodes continued. As to consciousness, the Board acknowledges that these episodes may also relate to a loss of consciousness as the Veteran reports that he loses consciousness during these episodes. On the June 2015 VA neuropsychological evaluation addendum, the examiner documented that the Veteran had stopped driving because of episodes of altered consciousness. However, this examiner and the June 2015 VA examiner documented that the Veteran's consciousness at this examination was normal. Furthermore, though the Veteran reports episodes of loss of consciousness, the Board finds this does not rise to the level of a persistently altered state of consciousness such as a vegetative state, minimally responsive state, or a coma as the Veteran reports that these are only episodes, ranging in time from a few minutes to a few hours, and, at worst, lasting for six hours. Furthermore, the evidence does not support a finding that the more severe episodes happen with sufficient frequency to rise to the level of a persistently altered state. Rather, treatment records predominantly reflect the Veteran to be fully oriented, as documented in treatment records from April 2013, May 2013, April 2014, September 2014, April 2015, May 2015, June 2015, July 2015, August 2015, October 2015, January 2016, May 2016, June 2016, August 2016, November 2016, May 2017, October 2017, November 2017, December 2017, April 2018, July 2018, August 2018, October 2018, December 2018, January 2019, May 2019, July 2019, August 2019, and October 2019. Thus, this area is characterized by no worse than Level 2 impairment prior to December 2019. (8) Visual and Spatial Orientation At the May June 2015 VA examination, the Veteran's visual spatial orientation was normal. However, at the April 2014 VA examination, the VA examiner documented that the Veteran had mildly impaired visual spatial orientation because he occasionally gets lost while driving home. Additionally, the Veteran reported an episode in June 2019 where he tripped and fell while walking his dog and he did not know where he was for an extended period. However, the records predominantly reflect the Veteran to be fully oriented on recurrent examination during the relevant period, as noted in treatment records from April 2013, May 2013, April 2014, September 2014, April 2015, May 2015, June 2015, July 2015, August 2015, October 2015, January 2016, May 2016, June 2016, August 2016, November 2016, May 2017, October 2017, November 2017, December 2017, April 2018, July 2018, August 2018, October 2018, December 2018, January 2019, May 2019, July 2019, August 2019, and October 2019. Mild impairment of visual spatial orientation, including getting lost in familiar surroundings, is indicative of Level 1 impairment. (9) Subjective Symptoms At the April 2014 VA examination, the Veteran reported only one subjective symptom of dizziness. However, the examiner documented that the Veteran had three or more subjective symptoms that mildly interfered with work, activities of daily living, or family or other relationships. At the June 2015 VA examination, it was documented that the Veteran had subjective symptoms of vertigo and dissociative symptoms that interfered with his driving, though they did not interfere with his work, activities of daily living, or family or other relationships. Furthermore, the examiner at the June 2015 VA examination documented that the dizziness and fainting spells were not at least as likely as not related to the residuals of a TBI as the symptoms pre-existed his head injuries in service. Regardless of whether or not the symptoms are related to the residuals of a TBI, at most, the three or more subjective symptoms that mildly interfere with work, activities of daily living, or family or other relationships warrant a Level 1 impairment. Here, the Board acknowledges the issues noted in the Joint Motion, which indicated the Board did not address specific evidence describing the Veteran's symptoms during the relevant period. The Joint Motion cited to a July 2019 VA treatment record stated that the Veteran reported experiencing episodes where he starts stuttering and cannot talk. He reported a recent episode where he tripped and fell while walking his dog and he sat for a long time not knowing where he was. Additionally, an October 2018 VA note reflects that the Veteran had an episode at his son's birthday party where is head started spinning, he got a headache, and he had a conversation he could not remember. At the Veteran's August 2018 Board hearing, the Veteran reported that he would "blank out" for an hour or two while driving. The Veteran and his wife have described separate instances indicative of memory loss, described as "passing out" or "blacking out" for hours at a time, but not indicative of the Veteran being unconscious. The Veteran reported such an episode in July 2018. These descriptions of the Veteran's symptoms are consistent with the Veteran's primary symptomology discussed more generally herein, to include headaches, vertigo/syncope and episodes of loss of consciousness/blanking out with dizziness, and memory loss. This symptomology and descriptions of such episodes have been considered by the Board and are reflected in the discussion of the Veteran's functioning through the facets of cognitive impairment herein, to include but not limited to memory, attention, concentration, executive functioning, motor activity, orientation and consciousness, and visual spatial orientation. (10) Neurobehavioral Effects Within the June 2015 VA examination report, the examiner documented that the Veteran had no neurobehavioral effects. The May 2015 VA examiner did not specifically address neurobehavioral effects, but the symptomatology that was documented primarily did not include irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, or impaired awareness of disability. Thus, the Veteran meets Level 0 impairment for this facet. Given the above, at no point during the period on appeal does the evidence document a 70 percent rating is warranted for the residuals of a TBI under DC 8045. Using the table to evaluate cognitive impairment, the Veteran has met the criteria for a Level 2 or below for all the facets. An assigned value of 2 yields a 40 percent evaluation, and only one evaluation may be assigned for all the applicable facets under DC 8045. Therefore, a rating of 70 percent prior to December 12, 2019 is not warranted. As for the Veteran's reports of headaches, a physical manifestation, the Board notes that this condition is being evaluated on its own for service connection, as discussed below, but that related symptoms have been considered herein to the extent that they impact the 10 facets of cognitive impairment discussed above. To the extent the Veteran reports tinnitus, the Board notes that the Veteran is already in receipt of a separate, 10 percent rating for tinnitus. As is detailed above, the record does not support a finding that the Veteran has a mental health diagnosis, despite mild symptoms of anxiety. Thus, a separate rating based on emotional or behavioral symptoms is also not warranted. As to the Veteran's contention that his condition warrants an extraschedular rating, an extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Thun v. Peake, 22 Vet. App. 111, 11516 (2008). Specifically, the Court stated the determination of whether a veteran is entitled to an extraschedular rating under §3.321 is a three-step inquiry. First it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service connected disability are inadequate. In this regard, the Court stated there must be a comparison between the level of severity and the symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the veteran's disability level and symptomatology, the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. As to the first element of Thun, the Board finds the rating criteria adequately address the reported residuals of a TBI. The main symptomatology reported by the Veteran as residuals of a TBI were headaches, vertigo/syncope and episodes of loss of consciousness/blanking out with dizziness, speech difficulties, and memory loss. The Veteran's reports of headaches are addressed as a separate physical manifestation and addressed below. The episodes of loss of consciousness/blanking out, dizziness, speech difficulties, and vertigo/syncope are addressed by the rating criteria under the subjective symptomatology, orientation, consciousness, and communication facets of cognitive disabilities. The reported memory loss is addressed under the facet of a cognitive disability that assesses memory, attention, concentration, and executive function. The VA examinations and treatment records also document symptoms including: impairment of visual spatial orientation, frustration, and cognitive inflexibility. However, all these symptoms are also considered by the rating criteria when evaluating the various facets of cognitive impairment. As the symptomatology does not create such an exceptional disability picture that the available schedular evaluations for residuals of a TBI are inadequate, the first element of Thun has not been met and referral for extraschedular consideration is not warranted. REASONS FOR REMAND 3. Service Connection for headaches In the Joint Motion, the parties stated that vacatur and remand of this issue was warranted to provide the Veteran with a new medical opinion that is adequate and complies with the Board's previous remand instructions seeking an opinion as to whether the Veteran's diagnosed headache disability was caused by the Veteran's residuals of TBI and/or his service connected scar above the right eye. The previous opinion provided by a December 2019 examiner did not provide an explanation as to why the Veteran's headaches were not caused or aggravated by the service-connected unstable and disfiguring scar above the right eye. Thus, remand is warranted to obtain an adequate addendum opinion that addresses secondary service connection relating to the Veteran's scar. 4. Entitlement to a TDIU rating, to include on an extraschedular basis Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service connected disabilities did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to December 12, 2019. Prior to that date, the Veteran was service connected for residuals of TBI with a 40 percent disability rating from March 27, 2013; bilateral plantar fasciitis with a 10 percent disability rating from March 27, 2013; disfiguring scar above right eye with a 10 percent disability rating from March 27, 2013; unstable scar above right eye with a 10 percent disability rating from March 27, 2013; tinnitus with a 10 percent disability rating from June 8, 2016; and bilateral hearing loss with a noncompensable disability rating from June 8, 2016. Thus, the Veteran had a combined disability rating of 40 percent from March 27, 2014 until December 12, 2019, when the Veteran's combined rating increased to 80 percent concurrent with an increased rating for residuals of TBI from 40 percent to 70 percent. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service connected disabilities, and then refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that when denying an extraschedular TDIU referral to the Director under 38 C.F.R. § 4.16(b), the Board must make two determinations in its decision: (1) that there is not sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service connected disabilities; and (2) that TDIU benefits are not warranted because the veteran is not unable to obtain and sustain financially gainful employment due to service connected disabilities. In the present matter, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service connected disabilities. Records submitted by SSA show that the Veteran has been found to be disabled and unable to sustain substantial gainful employment due to his combined service connected and nonservice connected disabilities beginning in December 2016. Although the SSA records show that primary diagnosis is "disorders of back (discogenic and degenerative)" and the secondary diagnoses is leukemia, conditions for which the Veteran is not service connected, the record substantiates a reasonable possibility that the Veteran is unemployable due to service connected disabilities. The Veteran has reported that he stopped driving years ago due to his residuals of TBI symptoms and he has indicated that these symptoms compromise his ability to maintain substantially gainful employment. Accordingly, referral to the Director is warranted for extraschedular TDIU consideration. The matters are REMANDED for the following action: 1. Refer the Veteran's claims file to an appropriate clinician for an addendum opinion regarding the etiology of the Veteran's headache disability as it relates to the Veteran's unstable and disfiguring scar above the right eye. The examiner should review the claims file. If the examiner finds that an in-person examination is necessary to provide the requested opinion, then schedule the Veteran for a VA examination. The agency of original jurisdiction should provide a copy of the below facts to the examiner. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from September 1977 to August 1980, from July 1983 to November 1983, and from September 1988 to August 1990. The Veteran is service connected for a scar located above the right eye relating to a 1979 head injury. He contends that he experiences headaches that may be caused by his scar. On a July 1990 Report of Medical History that the Veteran completed the month before service discharge, he denied a history of frequent or severe headaches. See VBMS entry with document type, "Military Personnel Record," receipt date 03/31/2014, with "#1" in the subject line, p. 73. A July 1999 VA treatment record shows that the examiner documented the Veteran reported no headache. The Veteran also denied headaches during VA treatment in November 2000, December 2001, and June 2002. See VBMS entry with document type, "CAPRI," receipt date 07/20/2015, with "#2" in the subject line, pp. 178 (June 2002), 181 (Dec. 2001), 198 (Nov. 2000), 239 (July 1999). Treatment records from December 2005 state that the Veteran fell on an icy driveway and may have struck his posterior head. The Veteran was seen in the ER and denied headache symptoms. See VBMS entry with document type, "CAPRI," receipt date 07/30/2015, with "#2" in the subject line, p. 145. On VA examination in April 2014, the Veteran reported that he had no formal diagnosis or treatment for headaches and that he did not recall exactly when his headaches started. He denied any history of migraine headaches and stated, "I have not claimed any headache condition." When specifically asked about headaches due to his prior head injury, the Veteran stated, "sure you['re] going to get a headache if you hit your head." The Veteran was noted to have no complaints of headaches associated with his head injuries. See VBMS entry with document type, "VA Examination," receipt date 04/24/2014, p. 45 48. A September 2016 VA treatment record shows the Veteran reported experiencing occasional headaches and that the neurologist thought it could be vestibular migraines See VBMS entry with document type, "CAPRI," receipt date 08/17/2017, with "#1" in the subject line, p. 53. The Veteran underwent a VA headaches examination in December 2019. The Veteran reported experiencing occasional headaches with pressure for 20 to 30 years. See VBMS entry with document type, "C&P Exam," receipt date 01/04/2020, with "#1 DBQ NEURO" in the subject field. The examiner provided an opinion that it was less likely than not that the Veteran's headaches were caused by the Veteran's service connected residuals of traumatic brain injury and/or unstable and disfiguring scar above his right eye. While the examiner explained why the Veteran's headaches were likely not attributable to the 1977 head injury, the examiner failed to provide an explanation as to why the Veteran's headaches are not attributable to his scar. See VBMS entry with document type, "C&P Exam," receipt date 01/04/2020, with "#2 DBQ NEURO" in the subject field. The Board seeks an opinion as to whether or not the Veteran's headaches are caused or aggravated by the unstable and disfiguring scar above the right eye. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following questions: a) Are the Veteran's headaches caused by the unstable and disfiguring scar above the right eye? Please state upon what facts, medical principles, and/or medical literature support the opinion. b) If the answer to a) is negative, are the Veteran's headaches aggravated by the unstable and disfiguring scar above the right eye? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature support the opinion. c) If the examiner finds that the service-connected unstable and disfiguring scar caused an increase in severity that is not due to the natural progress of the headaches, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the headaches prior to aggravation. If the examiner is unable to establish a baseline for the headaches prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Refer the Veteran's TDIU claim to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) for the period prior to December 12, 2019. A copy of the Director's decision on this claim must be included in the claims file. The Director is put on notice that within the VA Form 21 8940, Veteran's Application for Increased Compensation Based On Unemployability, received in April 2015, the Veteran documented that he has a three-year college education. During a June 2015 neuropsychology evaluation, the Veteran indicated that, after graduating high school in 1977, he completed three years of full-time technical school coursework at Hawkeye Tech in Waterloo, Iowa (no degrees or certificates), and earned an associate degrees in law enforcement from Kirkwood Community College in Cedar Rapids, Iowa in 1982. See VBMS entry with document type, "CAPRI," receipt date 03/31/2021, p. 824. The Director is further notified that the Veteran was granted SSA disability benefits, effective in December 2016. However, records furnished by SSA relating to the Veteran filing his SSA disability claim in 2014 show that, when directed to list all of the physical or mental conditions that limit the Veteran's ability to work, the Veteran listed chronic lymphatic leukemia, and high blood pressure. He stated that he had stopped working in May of 2014 due to these two conditions. See VBMS entry with document type, "Medical Treatment Records Furnished by SSA," receipt date 06/05/2015, p. 45. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.