Citation Nr: 0305709 Decision Date: 03/26/03 Archive Date: 04/03/03 DOCKET NO. 94-16 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to an increased rating for neuropsychiatric disorder identified as conversion reaction, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for chronic brain syndrome associated with trauma and manifested by headaches and dizzy spells, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from January 1945 to August 1946 and from September 1950 to December 1952, including combat service during the Korean Conflict. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, that denied the veteran's claims seeking increased ratings for his service-connected residuals of an injury to the left hand, described as a shell fragment wound of the left hand, with postoperative carpal tunnel syndrome (left hand disability), rated as 40 percent disabling; for a neuropsychiatric disorder, identified as conversion reaction (neuropsychiatric disorder), rated as 30 percent disabling; and for chronic brain syndrome associated with trauma and manifested by headaches and dizzy spells (chronic brain syndrome), rated as 10 percent disabling. The veteran perfected a timely appeal of the determination to the Board. When this matter was initially before the Board in May 2000, it was remanded in light of the veteran's request to testify at a Board hearing that was conducted at the local VA office; however, in March 2001, the veteran withdrew this request. When this matter was again before the Board in August 2001, his claim for an increased rating for his left hand disability was denied. The veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court); however, in a January 2002 order, the Court dismissed his appeal. As such, his left hand disability is no longer before the Board. In the August 2001 decision, the Board also remanded the veteran's neuropsychiatric disorder and chronic brain syndrome claims for further development and adjudication. Because the RO has confirmed and continued its denial of these claims, the case has been returned to the Board for further appellate consideration. As a final preliminary matter, in February 2000, the RO granted service connection for tinnitus on the basis that the veteran had had constant humming tinnitus since being knocked unconscious by an exploding demolition charge while serving in Korea. The RO assigned a 10 percent rating for this condition, effective May 23, 1994, and thus no claim regarding this disability is before the Board. FINDINGS OF FACT 1. All identified relevant evidence necessary for disposition of the appeal has been obtained 2. Neither the former criteria for evaluating psychiatric disabilities, in effect when the veteran filed his claim for an increased rating, nor the revised criteria, which became effective November 7, 1996, are more favorable to the veteran's claim. 3. The evidence shows that the veteran's neuropsychiatric disorder is productive of considerable impairment in his ability to establish or maintain effective or favorable relationships with people, and that the reliability, flexibility, and efficiency levels are so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. 4. The preponderance of the evidence shows that the veteran's neuropsychiatric disorder is not productive of severe impairment in his ability to establish and maintain effective or favorable relationships or that the psychoneurotic symptoms are of such severity and persistence that there was severe impairment of the ability to obtain or retain employment. 5. The preponderance of the evidence shows that the veteran's neuropsychiatric disorder is not productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. 6. The neurological impairment stemming from the veteran's chronic brain syndrome includes a seizure disorder that requires continuous medication for control; however, the preponderance of the evidence shows that the veteran has not averaged one major seizure every two years or two minor seizures every six months. 7. The neurological impairment stemming from the veteran's chronic brain syndrome includes headaches that are equivalent to characteristic prostrating attacks occurring on average of at least once a month over the last several months; however, very frequent prostrating and prolonged attacks, which are productive of severe economic adaptability, have not been demonstrated. 8. Neither the former criteria for evaluating dizziness, in effect when the veteran filed his claims for an increased rating for his chronic brain syndrome, nor the revised criteria, which became effective June 10, 1999, are more favorable to the veteran's claim. 9. The neurological impairment stemming from the veteran's chronic brain syndrome includes dizziness; however, the preponderance of the evidence is against a finding that the disability is also productive of occasional staggering. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 50 percent evaluation for conversion reaction have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9402, 9424 (1996, 2002). 2. The criteria for a separate 10 percent evaluation for neurological impairment consisting of seizure disorder have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.20, 4.121, 4.122, 4.124a, 4.126, Diagnostic Codes 8910, 8911, 8914, 9304 (1996, 2002). 3. The criteria for a separate 30 percent evaluation for neurological impairment consisting of headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.124a, 4.126, 4.132, Diagnostic Codes 8045, 8100, 9304 (1996, 2002). 4. The criteria for a separate 10 percent for neurological impairment consisting of disability manifested by dizziness have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.87, 4.87a, 4.126, 4.132 Diagnostic Codes 6204, 9304 (1996, 1999, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, and 5126, and codified as amended at 5102, 5103, 5106 and 5107 (West Supp. 2001)) redefined VA's duty to assist a veteran in the development of a claim. Guidelines for the implementation of the VCAA that amended VA regulations were published in the Federal Register in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The Board finds that all relevant evidence has been obtained with regard to the veteran's claims for increased ratings for his neuropsychiatric disorder and chronic brain syndrome, and that the requirements of the VCAA have in effect been satisfied. The veteran has been provided with VA examinations in June 1994, January 1996, November 1998 and October 2002 to determine the nature and extent of his neuropsychiatric disorder and chronic brain syndrome. He and his representative have been provided with a statement of the case and supplemental statements of the case (SSOCs) that discuss the pertinent evidence, and the laws and regulations related to the claims, and essentially notify them of the evidence needed by the veteran to prevail on the claims. In an August 2002 letter and in the December 2002 SSOC, the RO notified the veteran of the evidence needed to substantiate his claims and offered to assist him in obtaining any relevant evidence. These communications gave notice of what evidence the appellant needed to submit and what evidence VA would try to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). There is no identified evidence that has not been accounted for and the veteran's representative has been given the opportunity to submit written argument. Under the circumstances, the Board finds that the veteran has been provided with adequate notice of the evidence needed to successfully prove his claims and that there is no prejudice to him by appellate consideration of the claims at this time, without a third remand of the case to the RO for providing additional assistance to the veteran in the development of his claims as required by the VCAA or to give the representative another opportunity to present additional evidence and/or argument. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the extensive record on appeal demonstrates the futility of any additional evidentiary development and that there is no reasonable possibility that further assistance would aid him in substantiating his claims, especially in light of the Board's favorable determinations. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background The veteran served in combat during the Korean Conflict and the service medical records shows that he had post-concussion headaches, dizziness and syncope. He was discharged in December 1952 because of the injuries he sustained due to brain concussion as a result of that service. In a March 1953 rating action, the RO granted service connection for "encephalopathy, traumatic, brain concussion conversion reaction features" and assigned a 30 percent rating under Diagnostic Code 8001, effective January 1, 1953. During the initial post-service VA examination, which was conducted in March 1954, the veteran complained of having headaches, blackout spells and dizziness. With respect to his headaches, the veteran reported that, upon mild exertion, he developed an increasing sensation of pressure on top of his head; he also stated that he experienced dizzy spells upon exertion and occasionally lost consciousness. Following the examination, the examiner diagnosed him as having conversion reaction, moderate; and chronic brain syndrome, non-psychotic reaction, due to cerebral concussion, manifested by headaches and blackout spells. During the next pertinent post-service examination, which was conducted in February 1961, the veteran complained of suffering from headaches approximately twice per week "located on top of his head." The veteran reported that they could persist for an entire day; he also indicated that he had dizzy spells approximately once per week. With respect to his headaches, he stated, "I get terrible headaches. I have constant pressure in my head." Following the examination, the physician diagnosed him as having conversion reaction, moderate; and chronic brain syndrome associated with brain trauma, manifested by headaches and dizzy spells. In an April 1972 rating decision, the RO kept the definition and evaluation of the veteran's neuropsychiatric disorder intact while changing the code under which it was evaluated to Diagnostic Code 8045. Thereafter, in a January 1973 rating decision, the RO assigned separate ratings for the veteran's neuropsychiatric disorder and his chronic brain syndrome, assigning a 30 percent rating for his "conversion reaction" under Diagnostic Code 9402, and a 10 percent evaluation for his chronic brain syndrome associated with trauma and manifested by headaches and dizzy spells under Diagnostic Code 9304; each evaluation was effective October 8, 1971. The characterization and evaluation of the veteran's neuropsychiatric disorder and chronic brain syndrome remained unchanged when the veteran filed these increased rating claims in July 1992. In support of his claims for increased ratings for neuropsychiatric disorder and chronic brain syndrome, the veteran maintained that his dizzy spells, headaches and seizures had worsened. In addition, he indicated that he was receiving regular treatment at the Wilkes-Barre, Pennsylvania, VA Medical Center for his neuropsychiatric disorder and his chronic brain syndrome. In an effort to assist the veteran in the development of these claims, the RO associated records of his treatment at that facility, dated from April 1991 to November 1992. With respect to his neuropsychiatric disorder, the records show that the veteran was seen on an outpatient basis at the mental health clinic for treatment of anxiety and depression. The entries also show that he was seen for complaints of "throbbing" headaches, and dizziness. In addition, the records reflect that the veteran was taking Dilantin to treat his seizure disorder, which was attributed to his post- concussion syndrome. Based on its review of these VA outpatient treatment records, in an April 1993 rating decision, the RO denied entitlement to increased ratings for these disabilities. The veteran perfected an appeal, arguing that the conditions had worsened, which he asserted was reflected by the findings and conclusions in the outpatient treatment entries. The RO thereafter associated records of his outpatient treatment, dated from late 1992 to September 1993. These records show that the veteran continued to use anti-seizure medications and that he had dizzy spells and headaches. They also reflect that he complained of having similar psychiatric symptoms. Further, the entries indicate that he denied having homicidal or suicidal ideation. In a December 1993 rating decision, the RO confirmed and continued its denial of the veteran's increased rating claim. In March 1994 written argument, the veteran's representative noted that he had not been afforded a VA examination since 1981 and requested that he be formally evaluated to assess the nature and severity of his neuropsychiatric disorder and the manifestations of his chronic brain syndrome. With regard to the latter service-connected disability, his representative emphasized that the veteran had fainting spells and had suffered from dizziness, vertigo and blackout symptomatology "throughout the years." In addition, the veteran requested the opportunity to testify at an RO hearing, which was held in May 1994. During the hearing, the veteran reiterated that he was receiving regular VA group therapy treatment for his neuropsychiatric disorder. The veteran denied avoiding crowds or any particular individuals and reported that he was involved in his grandchildren's little league games. Further, he stated that he attended church, but that he had no other social involvements. With respect to the manifestations of his chronic brain syndrome, the veteran testified that he had blacked out two years earlier and used Dilantin and meclizine to treat his seizure disorder and dizziness; he reported that because of his dizziness, he was unable to drive. In addition, the veteran complained of having headaches. In June 1994, the veteran was afforded a formal VA neurological examination. At the outset of the report, the neurologist noted that the veteran was taking meclizine for his dizziness and Dilantin for his blackouts. The examiner observed that the veteran's most recent blackout occurred approximately two and one-half years earlier, and that he had suffered from blackouts and dizzy spells since his service in Korea. Further, the physician indicated that the veteran suffered from frequent headaches that he treated with pain medications. Following his examination, the neurologist diagnosed the veteran as having recurrent blackouts and a seizure disorder as a residual of an in-service head injury; and recurrent headaches. Later that same month, the veteran was also afforded a formal VA psychiatric examination. The physician noted that the veteran was retired and resided with his spouse. In addition, he observed that the veteran was receiving regular treatment at the VA mental health clinic. During the examination, the veteran reported that he had suffered from dizziness since the in-service injury as well as recurrent headaches. In addition, he reiterated that he no longer drove a car because of his dizziness, and noted that that was the recommendation of a neurologist. The mental status examination revealed that the veteran was appropriately dressed and well groomed, and that his affect was appropriate. In addition, the examiner described his mood as "apprehensive" and indicated that the veteran denied having any audiovisual hallucination or delusional ideation. Although the veteran complained of having impaired memory, the examination disclosed that his short-term memory was "average clinically." He had no thought disorder and the psychiatrist indicated that the veteran was not deranged. The diagnoses were organic mental disorder secondary to head injury, manifested by headaches and recurrent dizzy spells; and conversion reaction, moderate to severe. In addition, he noted that the veteran suffered from a seizure disorder. Subsequent to offering these diagnoses, the physician estimated that the veteran's Global Assessment of Functioning (GAF) score was 50 currently and that a GAF score of 60 represented his highest score during the past year. In January 1996, the veteran was afforded another VA neurological examination. The physician indicated that the veteran's seizures were under good control through the use of Dilantin. The examiner also noted that the veteran continued to complain of having dizziness and was advised that he should cease driving. The examination revealed that the veteran had a complete loss of smell. In addition, the neurologist opined that the veteran did not have positional vertigo. The diagnosis was history of head injury during service and history of a seizure disorder that was apparently under good control, with episodes of dizziness. That same month, he was also afforded a VA audio-ear disease examination. The examiner noted the veteran's complaints of dizzy spells and lightheadedness, as well as his history of suffering a brain concussion during service. The examiner noted that the veteran had had a seizure disorder since that time and was treating the condition with Dilantin. In addition, he observed that for many years had been treated for dizziness and lightheadedness. The diagnosis was status post brain concussion with symptoms of seizures and chronic lightheadedness. In November 1998, the veteran was afforded another VA neurological examination. At the outset of the report, the neurologist noted the veteran's pertinent in-service and post-service medical history. The veteran reported that he experienced his most recent blackout spell approximately five to six years earlier, and that he continued to treat his seizure disorder with Dilantin. The examiner indicated that the veteran was alert and oriented, and following his evaluation, commented that his condition was consistent with a diagnosis of generalized tonic/clonic seizures, which were under good control with Dilantin. Later that same month, the veteran was also afforded another VA psychiatric examination. At the outset of his report, the psychiatrist observed that the veteran was receiving regular VA outpatient treatment. In addition, he noted that the veteran was diagnosed as having organic brain syndrome that was secondary to a brain concussion he suffered while serving in Korea. The examiner also observed that he had a conversion reaction, as well as a seizure disorder that "was perhaps related to the brain concussion of a somewhat grand mal or partial complex seizure type." The physician added that the seizures were under good control with Dilantin therapy and that he had not had one during the past ten to twelve years. The psychiatrist further stated that a review of the veteran's medical records disclosed that he was taking meclizine for his dizzy spells. Finally, he observed that was married to his spouse for 45 years, and was diagnosed as having a conversion disorder. During the evaluation, the complained of suffering from recurrent blackouts and dizzy spells, as well as headaches with nausea. The veteran described the headaches as feeling like a band around his head. In addition, he stated that he enjoyed the relationships he had with his spouse, children and grandchildren. The veteran acknowledged, however, having periodic depression, low self-esteem and sleep disturbance. The examination revealed the veteran was well groomed and had good personal hygiene. The psychiatrist described him as pleasant and cooperative and indicated that his affect was full, stable and appropriate. In addition, the examiner stated that his mood was normal, but noted that he had periods of anxiety. The veteran's remote memory was intact but his recent memory, as well as his concentration, was impaired. The veteran exhibited no psychotic symptoms and was free from homicidal and suicidal ideation. Further, his concentration and insight were fair. In addition, the physician commented that the veteran was very concerned about his spontaneous dizzy spells and recurrent headaches, which he stated occurred once or twice each week and were accompanied by nausea. The psychiatrist diagnosed him as having organic brain syndrome secondary to head trauma; and a conversion disorder. In addition, he estimated that his GAF score was 55 currently and that a GAF score of 55 represented his highest score during the past year, which the examiner explained reflected moderate social and industrial impairment. In the August 2001 remand, the Board noted that outstanding records of his treatment had not been associated with the claims folder and instructed the RO to obtain them. The Board also concluded that new VA examinations were necessary prior to its consideration of these claims. In compliance with the Board's instructions, the RO associated records of the veteran's VA outpatient care, dated from January 1995 to August 2002. These records show that the veteran was seen on numerous occasions for treatment of his neuropsychiatric disorder, as well as for the manifestations of his chronic brain syndrome, i.e., his seizure disorder, headaches and dizzy spells. With respect to his neuropsychiatric disorder, the entries reflect that the veteran continued to been seen for complaints of anxiety, stress and depression, that his gross memory and cognition were intact, and that he was coping "fairly well." The outpatient records were silent for any GAF scores. These records also show that the veteran was prescribed Dilantin and Phenytoin to treat his seizure disorder, which was also diagnosed as post-traumatic epilepsy; meclizine to treat his dizziness, which was diagnosed as positional vertigo; and Lodine and Salcilate for his headaches. In further compliance with the Board's remand instruction, in October 2002 he was afforded another VA neurological examination. At the outset of the report, the neurologist indicated that he had reviewed the veteran's claims folder and discussed the veteran's pertinent medical history and treatment regimen. In doing so, the examiner observed that the veteran had been taking Dilantin for many years and had not had a seizure in the prior fifteen years, although he noted he had experienced a loss of consciousness at a drug store a few years earlier. In addition, the neurologist noted that he veteran had had headaches and intermittent dizziness since the in-service injury. The examination revealed that the veteran was mentally alert, oriented to time, place and person, and cognitively intact. Following the examination, the physician commented that the veteran had been seizure-free for a long time and that the disorder was under good control. The neurologist added that the symptoms of his post-concussion syndrome, i.e., his seizure disorder, headaches and dizziness, were mild to moderately disabling and were not severely disabling. Later that same month, he was also afforded a VA psychiatric examination. At the outset of his report, the physician noted that he had thoroughly reviewed the veteran's claims folder, including the records of his treatment at the Wilkes- Barre VA Medical Center, and observed that the veteran and his spouse had been married for 50 years. In this regard, the psychiatrist observed that the focus of the veteran's treatment was stress management and relaxation techniques to relieve anxiety. In addition, he noted that the service medical records show that in November 1952 he was diagnosed as having a "post-concussion syndrome with headaches, dizzy spells and passing out symptoms." The examiner also observed that the veteran was taking Dilantin, 100 mg, three times a day, for his seizures, and meclizine, 25 mg, three times a day, to treat his dizzy spells. During the examination, the veteran complained of having headaches, dizzy spells and periodic blackouts. The veteran stated that both his headaches and dizzy spells were chronic and recurrent, and were aggravated by anxiety. In addition, he reported that he had approximately two headaches per week that were usually relieved by lying down in bed; he described them as "a pressure at the back of his head." Further, he indicated that he was treating his dizzy spells with meclizine and that in September 2002 he fell to the ground while at a drug store, but was unclear whether he passed out; he was hospitalized overnight at Mercy Hospital and was discharged. With respect to his neuropsychiatric disorder, the veteran stated that through group therapy at the Wilkes-Barre VA Medical Center and by listening to relaxation tapes and music, he was able to control his anxiety. The veteran also stated that he slept well at night. In addition, he reported that he had not had a seizure in twenty years, but has been on Dilantin therapy for many years; the examiner commented that it was unclear whether he had tonic-clonic as part of his seizures. The examination revealed that he was oriented in three spheres, well groomed, and had good personal hygiene. The psychiatrist described his mood as mildly nervous and stated that had a pleasant demeanor. In addition, he characterized his affect as mood congruent. Further, the examiner reported that the veteran's responses were relevant and coherent and were free from homicidal or suicidal ideation. The examination also disclosed that his remote memory was grossly intact, although his short-term memory was impaired. The diagnoses were cognitive disorder, not otherwise specified; and conversion disorder. With respect to the first diagnosis, the psychiatrist indicated that cognitive disorder, not otherwise specified, was the new terminology for post-concussion organic brain syndrome. In addition, he stated that the veteran had short- term memory loss, impaired concentration, headaches, dizzy spells and blackouts due to the condition, but that it was unclear whether he suffered from tonic-clonic convulsions. The psychiatrist added that his medical records show that he has intermittent blackouts, which he opined could be a manifestation of his seizure disorder. Finally, the psychiatrist estimated that his GAF score was 55 currently and that a GAF score of 55 represented his highest score during the past year. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The current level of disability, however, is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). During the course of this lengthy appeal, VA revised the criteria for diagnosing and evaluating psychiatric disabilities, effective November 7, 1996. 61 Fed. Reg. 52,695 (1996). In addition, effective August 30, 2002, VA amended the rating schedule regarding the evaluation for dizziness, effective June 10, 1999. 64 Fed. Reg. 25202-25210 (1999). A review of the records shows that in considering the veteran's neuropsychiatric disorder claim, the RO has evaluated the disability under both the former and revised criteria, so there is no prejudice to the veteran by the Board doing so as well. With respect to his dizziness, however, the Board acknowledges that the RO has not, to date, considered whether a separate evaluation is warranted for this disability. The Board concludes, however, in light of the age of this appeal and the Board's determination that a separate compensable evaluation is warranted for this condition, the veteran has not been prejudiced by the Board consideration of the former and revised criteria. See Bernard v. Brown, 4 Vet. App. at 394. The General Counsel of VA has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must generally consider the claim pursuant to both versions during the course of an appeal. See VAOPGCPREC 3- 2000 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). In addition, where, as here, a veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20 Further, because the residuals of his chronic brain syndrome are manifested by distinct, nonoverlapping pathology, i.e., his seizures disorder, headaches and dizziness, the Board will evaluate each of these discrete manifestations while rating the residuals of the service-connected disability. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14). Finally, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). A. Neuropsychiatric disorder As discussed above, the veteran's neuropsychiatric disorder (conversion reaction), has been rated as 30 percent disabling under former Diagnostic Code 9402, which was repealed when the revised criteria for rating psychiatric disabilities became effective. Former Diagnostic Code 9402 provided that a 30 percent evaluation was warranted when the disability was productive of definite impairment of social and industrial adaptability. The term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing a degree of social and industrial inadaptability that was "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). A 50 percent evaluation was assigned where the ability to establish or maintain effective or favorable relationships with people was considerably impaired and where the reliability, flexibility, and efficiency levels were so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation required that the ability to establish and maintain effective or favorable relationships was severely impaired and that the psychoneurotic symptoms were of such severity and persistence that there was severe impairment of the ability to obtain or retain employment. To warrant a 100 percent evaluation, the attitudes of all contacts except the most intimate had to be so adversely affected as to result in virtual isolation in the community; or there must have been totally incapacitating symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or, as a result of the psychiatric disability, the individual must have been unable to obtain or retain employment. Further, the Court held that these criteria provide three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In addition, 38 C.F.R. § 4.16(c) (1996), which was repealed when the revised criteria for rating psychiatric disabilities became effective, provided that where the veteran's mental disorder was assigned a 70 percent evaluation, and that mental disorder precluded a veteran from securing or following a substantially gainful occupation, regardless of whether the veteran had other compensable service-connected disabilities, the mental disorder must be assigned a 100 percent evaluation under the appropriate diagnostic code. Johnson v. Brown, 7 Vet. App. at 97; see also Norris v. West, 12 Vet. App. 413, 418-19 (1999). In place of repealed former Diagnostic Code 9402, "conversion disorder, psychogenic pain disorder," the revised regulations include a new code that most closely relates to the veteran's psychiatric impairment, Diagnostic Code 9424, which evaluates "conversion disorder." The Board finds that the criteria set forth in this code are the most appropriate to evaluate the veteran's neuropsychiatric disorder. Under Diagnostic Code 9424, a 30 percent evaluation is warranted when the condition is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation requires that the disorder be manifested by occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 evaluation requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Finally, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Following a careful review of the evidence, the Board finds that the veteran's neuropsychiatric disorder more nearly approximates the criteria for a 50 percent rating under both the former and the revised criteria. In reaching this determination, the Board observes that the VA outpatient treatment records, as well as the veteran's statements and May 1994 hearing testimony, show that he suffers from anxiety, stress and depression due to his neuropsychiatric disorder. Further, the Board notes that June 1994 VA psychiatric examination reflects that the examiner assigned a GAF score of 50, which according to both the Third Edition, Revised, (DSM-III-R) as well as the Fourth Edition (DSM-IV) of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, indicates that he suffers from serious psychiatric symptoms. In addition, the psychiatrist who conducted the November 1998 VA psychiatric examination reported that the veteran had anxiety and that his memory and concentration was impaired; that examiner estimated that the veteran's GAF score was 55, which pursuant to DSM-III-R and DSM-IV, reflects moderate symptoms or moderate difficulty in social, occupational or school functioning. The Board concludes that this GAF score is more consistent with a finding of considerable social and industrial impairment under the former criteria. Similarly, the physician who performed the October 2002 VA psychiatric examination likewise estimated that his GAF score was 55. The Board finds that lay evidence and formal assessments also more nearly approximate the criteria for a 50 percent evaluation under the revised criteria. The Board concludes, however, that the preponderance of the evidence is against a finding that the veteran's neuropsychiatric disorder warrants an evaluation in excess of 50 percent under either the former or the revised regulations. In reaching this latter determination, the Board points out that during the May 1994 hearing, the veteran testified that he attended both his grandchildren's little league games as well as church. Further, the VA outpatient treatment records during this extended appellate period show that he has consistently denied having homicidal or suicidal ideation. In addition, the medical evidence has consistently shown that the veteran had good personal appearance and hygiene. The Board also reiterates that the GAF scores assigned following the three formal VA psychiatric examinations more nearly approximate the criteria for a 50 percent evaluation for the veteran's neuropsychiatric disorder because they reflect that he has considerable rather than severe psychiatric impairment. In light of the above, the preponderance of the evidence is against entitlement to a 70 percent rating for neuropsychiatric disorder. B. Chronic brain syndrome Under the former criteria contained in the Rating Schedule, brain disease due to trauma with purely subjective complaints, such as headache, dizziness, and insomnia were rated as no more than 10 percent disabling under Diagnostic Code 9304. 38 C.F.R. § 4.124a, Code 8045. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Id. However, a note under the former Diagnostic Code 9304 provided that when neurological or other manifestations were of a common etiology as the mental disorder, they were separately rated as distinct entities under the appropriate neurological or other system. Similarly, the revised regulations provide that neurological deficits or other impairments stemming from the same etiology as a head injury shall be rated separately and combined with the evaluation of the cognitive disorder. 38 C.F.R. § 4.126. Although the Board acknowledges that, to date, these distinct manifestations have not been evaluated independently, the Board notes that the medical evidence, dated since the veteran's separation from service, has consistently shown that the veteran's seizure disorder is due to his in-service brain trauma. In addition, the Board observes that the grant of service connection for chronic brain syndrome has specifically contemplated headaches and dizzy spells. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In this case, the Board finds that the veteran's seizures are best evaluated under the general rating for seizure disorders set forth in 38 C.F.R. § 4.124a, that his headaches are best evaluated by analogy to migraines under Diagnostic Code 8100, and that his dizzy spells are best evaluated by analogy to peripheral vestibular disorders under Diagnostic Code 6204. (1). Seizure disorder The various forms of epilepsy are evaluated in accordance with a general rating formula. A confirmed diagnosis of epilepsy with history of seizures warrants a 10 percent evaluation. A 10 percent evaluation is also the minimum evaluation when continuous medication is shown necessary for the control of epilepsy. This minimum evaluation will not be combined with any other rating for epilepsy. A 20 percent evaluation is warranted when there has been at least one major seizure in the last two years or there have been at least two minor seizures in the last six months. A 40 percent evaluation requires at least one major seizure in the last six months or two major seizures in the last year; or an average of at least five to eight minor seizures weekly. A 60 percent evaluation requires an average of at least one major seizure in four months over the last year; or nine to ten minor seizures per week. An 80 percent evaluation requires an average of at least one major seizure in three months over the last year; or more that 10 minor seizures weekly. A 100 percent evaluation requires an average of at least one major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911. Following a careful review of the record, the Board finds that the veteran's seizure disorder warrants a separate 10 percent rating. In reaching this determination, the Board reiterates that the medical evidence has consistently indicated that the veteran has had a seizure disorder since his in-service brain injury. A careful review of the VA outpatient treatment records, and especially the numerous examination reports, however, uniformly show that the veteran has been treating this disability with anti-seizure medications, most notably Dilantin, and that the disability has been "under good control" and that he has been seizure- free for many years, including during this lengthy appellate period; indeed, the veteran does not contend otherwise. Thus, in light of the veteran's well-documented use of these medications, a 10 percent rating is warranted. However, because the preponderance of the evidence shows that he does not average at least one major seizure in the every two years or two minor seizures every six months, a rating in excess of 10 percent is not warranted. (2). Headaches The record shows that the veteran has suffered from a chronic headache disorder since his in-service brain injury, and that service connection has been established for this condition. The Board finds that the veteran's headaches are best evaluated by analogy to migraines under Diagnostic Code 8100, and following a careful review of the medical and lay evidence, the Board finds that entitlement to a separate 30 percent evaluation for this disability has been shown. Under this code, a 50 percent evaluation requires that the disability be manifested by very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. A 30 percent rating under this code is warranted when the disability is manifested by headaches, with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating requires that the condition be productive of headaches with characteristic prostrating attacks averaging one in two months over last several months. Finally, a noncompensable rating is assigned for headaches with less frequent attacks. Following a careful review of the evidence, the Board finds that this disability most closely approximates the criteria for a 30 percent evaluation under Diagnostic Code 8100. In reaching this determination, the Board observes that the VA outpatient treatment records dated during the early 1990s reflect that the veteran complained of having throbbing headaches and that he was seen on various occasions for treatment of this disability. In addition, during the May 1994 RO hearing, the veteran testified that he suffered from this chronic condition. Further, the June 1994 VA neurological and psychiatric examination reports indicate that he had a recurrent headache disorder. In addition, the November 1998 VA psychiatric examination report states that the veteran continued to suffer from headaches, which were accompanied by nausea. Further, the VA outpatient treatment records, dated from the mid-1990s to 2002, reflect that he was treating the condition with various medications to treat the pain. Finally, during the October 2002 VA neurological and psychiatric examinations, the veteran indicated that he had approximately two headaches per week and that he had to lie down to relieve the pain. As such, the Board finds that the disability most nearly approximates the criteria for a separate 30 percent evaluation under Diagnostic Code 8100 for a chronic and recurrent headache disorder equivalent in severity to characteristic prostrating attacks occurring on an average occurring at least once per month. The Board finds, however, that the preponderance of the evidence is against a finding that this disability is manifested by very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. In reaching this latter determination, the Board observes that although chronic and recurrent, the evidence does not show, and the veteran does not contend, that this condition is productive of very frequent and prostrating and prolonged headaches that are productive of severe economic inadaptability. As such, a schedular evaluation in excess of 30 percent is not warranted. (3). Dizziness The record shows that the veteran has suffered from chronic dizziness since his in-service brain injury, and that service connection has been established for this condition. The Board concludes that the veteran's dizziness is best evaluated by analogy to the criteria set forth in Diagnostic Code 6204, and that following a careful review of the medical and lay evidence, the Board finds that entitlement to a separate 10 percent evaluation for this disability has been shown. As a preliminary matter, as noted in the introduction, the RO has established service connection for tinnitus and the veteran is receiving a separate 10 percent rating for this disability. As such, this symptom cannot be considered in rating the veteran's dizziness. See 38 C.F.R. § 4.14. As noted above, the criteria set forth in Diagnostic Code 6204 were changed, effective June 10, 1999. Under the former criteria, a 10 percent evaluation was warranted for moderate disability, which consisted of tinnitus and occasional dizziness; a 30 percent evaluation required tinnitus, dizziness and occasional staggering. Under the revised criteria, a 10 percent rating is warranted for occasional dizziness, and a 30 percent evaluation requires dizziness and occasional staggering. The VA outpatient treatment records show that the veteran continued to suffer from dizzy spells, and in May 1994, the veteran testified that a neurologist recommended that he cease operating a motor vehicle accident due to this condition. In addition, at the June 1996 VA psychiatric examination, the veteran reiterated that he no longer drove a car due to his dizziness, and the examiner who performed the January 1996 VA neurological examination diagnosed him as having episodes of dizziness. Further, the physician who conducted the VA audio-ear disease examination indicated that the veteran suffered from chronic lightheadedness, and during the October 2002 VA neurological and psychiatric examinations, the veteran reported having this condition, and he was diagnosed as suffering from intermittent dizziness since the in-service injury. Moreover, numerous VA examiners have noted that for many years the veteran has been prescribed meclizine to treat his dizziness. In light of the foregoing, the Board concludes that the evidence supports entitlement to a separate 10 percent evaluation for this disability. The Board further determines, however, that because the preponderance of the evidence is against a finding that the veteran suffers from staggering as well, a rating in excess of 10 percent is not warranted. C. Extraschedular consideration Finally, the above determinations are based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. There is no showing that either the veteran's neuropsychiatric disorder or the distinct manifestations of his chronic brain syndrome, i.e., his seizure disorder, headaches and dizziness, result in so exceptional or so unusual a disability picture as to warrant the assignment of higher evaluations on an extra-schedular basis. See 38 C.F.R. § 3.321. There is no indication that either of the disabilities result in marked interference with employment (i.e., beyond that contemplated in the assigned evaluations). Further, neither disability has been shown to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of these factors, the Board is not required to remand either of these claims to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 50 percent rating for neuropsychiatric disorder identified as conversion reaction is granted, subject to the law and regulations governing payment of monetary benefits. A separate 10 percent rating for seizure disorder is granted, subject to the law and regulations governing the payment of VA monetary benefits. A separate 30 percent rating for the headaches is granted, subject to the law and regulations governing the payment of VA monetary benefits. A separate 10 percent rating for disability manifested by dizziness is granted, subject to the law and regulations governing the payment of VA monetary benefits. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.