Citation Nr: 1048522 Decision Date: 12/30/10 Archive Date: 01/11/11 DOCKET NO. 05-40 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE 1. Entitlement to an increased rating for residuals of a concussion, rated as 10 percent disabling, for the period before October 23, 2008. 2. Entitlement to an increased rating for residuals of a concussion, rated as 10 percent disabling, for the period from October 23, 2008 to February 17, 2010. 3. Entitlement to an increased rating for residuals of a concussion, currently rated as 40 percent disabling, for the period from February 18, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D.S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO granted service connection for recurrent headaches, post concussion syndrome and assigned a disability rating of 10 percent, effective July 9, 2002. The Veteran filed a timely Notice of Disagreement in November 2004. In December 2009, the Veteran and his spouse testified at a Travel Board hearing held at the Huntington RO. Subsequently, the Board remanded this matter so that the Veteran could be afforded a new VA examination to determine the current severity of his disability. In the remand, the RO was directed to provide the VA examiner with the Veteran's claims file so that the examiner could review it in conjunction with the examination. The examiner was requested to describe all symptomatology due to the Veteran's service connected residuals of a concussion, including any cognitive impairment, emotional/behavioral impairment, physical impairment, and subjective symptoms. With regard to the Veteran's headaches, the examiner was requested to note the absence or occurrence of characteristic prostrating attacks, the frequency and duration of such attacks, and the extent of any associated economic impact. Finally, the examiner was asked to distinguish, to the extent possible, the manifestations of the Veteran's residuals of a concussion from those of any other disorder, including PTSD. Efforts to comply with those remand instructions were undertaken by the RO. Subsequently, in October 2010, the RO issued a new rating decision which granted an increased disability rating of 40 percent for recurrent headaches, post-concussion syndrome, effective February 18, 2010. A supplemental statement of the case issued with the October 2010 rating decision declined to grant a disability rating in excess of 40 percent. The Board is satisfied that the action directed in its December 2009 remand have been met with compliance. In view of the foregoing, the Board has recharacterized the issue as framed above to reflect the staged ratings created by the RO's October 2010 rating decision and SSOC. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for residuals of a concussion was filed in June 2003. 2. For the period before October 23, 2008, the Veteran's residuals from his in-service concussion were manifested by recurring headaches with accompanying mild photophobia and nausea. 3. For the period from October 23, 2008 to February 17, 2010, the Veteran's residuals from his in-service concussion were manifested by recurring headaches with characteristic prostrating attacks that occurred twice a week, but were not productive of severe economic inadaptability. 4. For the period from February 18, 2010, the Veteran's residuals from his in-service concussion have been manifested by recurring headaches with characteristic prostrating attacks that have occurred three to four times a week, but have not been productive of severe economic inadaptability. His headaches have also been accompanied by associated dizziness, fatigue, malaise, memory impairment, sensitivity to light and sound, diminished attention and concentration, and blurred vision. CONCLUSIONS OF LAW 1. For the period before October 23, 2008, the criteria for a disability rating in excess of 10 percent for residuals of a concussion have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a (2010); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007). 2. For the period from October 23, 2008 to February 17, 2010, the criteria for a disability rating of 30 percent, and no more, for residuals of a concussion have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8045 and 8100 (2010). 3. For the period from February 18, 2010, the criteria for a disability rating in excess of 40 percent for residuals of a concussion have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8045 and 8100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, in rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Vazquez-Flores v. Peake (Vazquez-Flores I), 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) held that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, in order to substantiate an increased rating claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) vacated Vazquez-Flores I in Vazquez-Flores v. Shinseki (Vazquez-Flores II), 580 F. 3d 1270 (Fed. Cir. 2009). In Vazquez-Flores II, the Federal Circuit held that the notice described in 38 U.S.C. § 5103(a) need not be veteran-specific and does not require VA to notify a veteran of the alternative diagnostic codes or of potential daily life evidence. Compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO and the AMC). See Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In December 2003, the Veteran was provided notice that was intended to inform him as to the information and evidence needed to substantiate his claim for an increased rating for organic brain syndrome. Following that notice, the Veteran's increased rating claim was initially adjudicated by the RO in a February 2004 rating decision. The December 2003 letter, however, is deficient in that it fails to advise the Veteran that he was required to provide evidence showing that the residuals of his concussion have worsened. Nonetheless, the Board notes that in his June 2003 claim, the Veteran asserted that his headaches, anxiety, and other purported residuals from his in-service concussion were getting worse. Based upon the Veteran's statement, it is evident that he already had knowledge of the evidence required to substantiate his claim. Under the circumstances, the Board finds that the Veteran has not been prejudiced by the deficiency inherent in the December 2003 notice letter. Further, in a separate March 2006 letter, the Veteran was further advised as to the assignment of disability ratings and determination of effective dates, as required by Dingess/Hartman. Following that notice, the Veteran was afforded a reasonable opportunity to respond to the March 2006 letter before his claim was readjudicated in an October 2010 supplemental statement of the case. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate a claim. The Veteran's service treatment records and identified VA treatment records have been obtained. The Veteran was afforded a VA examination in February 2004 to assess the severity of his post-concussion residuals. Additionally, and consistent with the Board's December 2009 remand, the Veteran was afforded a new VA examination in February 2010 to determine the severity of his headaches and any symptoms that may have arisen from his in- service concussion. The February 2010 VA examination was conducted in conjunction with the VA examiner's review of the claims file. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Analysis A. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings for each distinct period. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In this case, the Veteran's claim for an increased rating for residuals of a concussion was filed in June 2003. Accordingly, the relevant focus for adjudicating this claim is on the evidence of record from June 2002. In a February 2004 rating decision, the RO rated the Veteran's headaches, post concussion syndrome as being 10 percent disabling pursuant to the then-existing criteria of DC 8045. Although the Veteran's claim for an increased rating was initially filed in June 2003, he has specifically requested application of the revised traumatic brain injury (TBI) regulations (revised DC 8045). Accordingly, the RO reviewed the Veteran's claim under the amended criteria in an October 2010 rating decision and supplemental statement of the case. At that time, the RO granted a 40 percent disability rating pursuant to the provisions of the revised DC 8045 and effective February 18, 2008. Effective October 23, 2008, VA amended the criteria for rating residuals of traumatic brain injuries (TBIs), or more specifically, neurological and convulsive disorders, including under DC 8045. 73 Fed. Reg. 54,693, 54,708 (Sept. 23, 2008). This amendment applies to applications received by VA on and after October 23, 2008. The former criteria apply to applications received by VA before that date. A veteran whose residuals of TBI VA rated under DC 8045 prior to the amendment, however, is permitted to request review under the amended criteria regardless of whether his disability has worsened since the last review or VA receives additional evidence. The effective date of any increase in disability compensation based solely on the amended criteria must be no earlier than October 23, 2008, the effective date of the amended criteria. DC 8045, as formerly written before the 2008 revisions, provides that, where there is brain disease due to trauma, with purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, a rating will be effected under the DCs specifically dealing with such disabilities, with citation of a hyphenated DC. 38 C.F.R. § 4.124a, DC 8045 (2007). Purely subjective complaints, such as headaches, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under DC 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, DC 8045 (2007). Under the current version of DC 8045, as amended in 2008, residuals of TBI are to be rated based on cognitive impairment, emotional/behavioral dysfunction and physical dysfunction. Subjective symptoms, such as migraine headaches, may be the only residual of a TBI, or they may be associated with cognitive impairment or other areas of dysfunction. Because migraine headaches represent a residual with a distinct diagnosis, they are to be rated under the DC governing ratings of that diagnosis, not pursuant to the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a, DC 8045 (2009). DC 8100 governs ratings for migraine headaches and provides that a 50 percent evaluation is assignable for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation is assignable for characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent evaluation is assignable for characteristic prostrating attacks averaging one in two months over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2009). B. Increased Rating in Excess of 10 Percent for the Period before October 23, 2008 Based upon the evidence of record, the Board finds that the Veteran is not entitled to an increased disability rating in excess of 10 percent for residuals of a concussion for the period before October 23, 2008. As discussed above, the Board has applied the provisions of DC 8045 as they existed before they were revised in 2008 for this specified period. The evidence relating to treatment from June 2002 through October 2008 reflect ongoing complaints of headaches, but do not indicate the presence of either neurological disabilities or a diagnosis of multi-infarct dementia associated with brain trauma. In that regard, a November 2002 VA examination report documents reports of headaches and dizziness that persisted since the Veteran's in-service injury in 1969. According to the Veteran, these headaches occurred three or four days a week, but were not accompanied at that time by nausea or vomiting. Although the Veteran reported symptoms of depression, memory impairment, difficulty with concentration, and sleep impairment, the examiner opined that some of the concentration and memory impairment may be related to depression and anxiety disorder. A neurological examination at that time did not reveal any focal neurological deficits. Additionally, the examination did not reveal any reports or findings of prostrating attacks. A VA medical treatment record from July 2003 reflects that the Veteran reported that his headaches were accompanied by photophobia. At a February 2004 VA examination of the spine and brain, the Veteran reported that his headaches occurred three or four times a week and lasted from three to four hours up to one or two days. Once again, no prostrating attacks were noted. The examiner diagnosed post-concussion syndrome. Subsequent VA treatment records through August 2008 continue to document recurring headaches. A March 2004 record notes that the Veteran's headaches were accompanied by slight photosensitivity and nausea. In December 2005, the Veteran's headaches were provisionally diagnosed as a possible migraine headache. Although further neurological study was recommended, the records do not indicate that such further studies were performed. The evidence of record which pertains to treatment received by the Veteran from June 2002 to October 23, 2008 consists largely of VA treatment records which reflect ongoing complaints of recurring headaches. In the absence of evidence showing the presence of a purely neurological disability or diagnosis of a multi-infarct dementia associated with brain trauma, the Board cannot assign a disability rating in excess of 10 percent for the period before October 23, 2008. To that extent, the Veteran's appeal for a disability rating in excess of 10 percent during that period for residuals of a concussion is denied. 38 C.F.R. §§ 4.3, 4.7. C. Increased Rating in Excess of 10 Percent for the Period from October 23, 2008 to February 17, 2010 Based upon the medical evidence pertinent to the staged period from October 23,, 2008 to February 17, 2010, the Board finds that the Veteran is entitled to a disability rating of 30 percent, and no more, for residuals of his in-service concussion pursuant to DC 8100. The medical treatment records for this time period generally do not pertain to the Veteran's headaches or other residuals from his in-service concussion. VA treatment records from May 2008 to August 2008 reflect pulmonary treatment for a surgically removed mass in the Veteran's lung. A March 2009 VA examination to determine the severity of the Veteran's bilateral hearing loss and tinnitus reveals diagnoses of bilateral sensorineural hearing loss and tinnitus. No opinion is rendered relating either the Veteran's hearing loss or tinnitus to the Veteran's brain injury. Similarly, an April 2009 VA examination to assess the severity of the Veteran's PTSD revealed various psychiatric symptoms including depression, irritability, sleep disturbance, and difficulty concentrating. Nonetheless, the VA examiner does not relate these psychiatric symptoms to the Veteran's brain injury. At his October 2009 Travel Board hearing, the Veteran and his spouse testified that the Veteran continued to experience headaches accompanied by dizziness, forgetfulness, irritability, nausea, sensitivity to light, difficulty concentrating and focusing, and occasional difficulty with speech which the Veteran described as being "tongue tied." According to the Veteran, his headaches caused him to be incapacitated (i.e., lying in a quiet and dark room) twice a week. As noted in the preceding section discussing the applicable laws and regulations, the Board will apply the revised and current version of DC 8045 in rating the Veteran's disability for this specified period. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury (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 traumatic brain injury are evaluated separately. A level of severity of "1" has been assigned for the memory, attention, concentration, executive functions facet, indicating that an examiner has found evidence such as a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. A higher level of severity of "2" is not warranted unless an examiner finds evidence such as objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. A level of severity of "0" has been assigned for the judgment facet, indicating that an examiner has found evidence of normal judgment. A higher level of severity of "1" is not warranted unless an examiner finds evidence of mildly impaired judgment, including symptoms such as for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A level of severity of "1" has been assigned for the social interaction facet, indicating that an examiner has found evidence that social interaction is occasionally inappropriate. A higher level of severity of "2" is not warranted unless an examiner finds evidence that social interaction is frequently inappropriate. A level of severity of "1" has been assigned for the orientation facet, indicating that an examiner has found evidence such as occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. A higher level of severity of "2" is not warranted unless an examiner finds evidence such as occasionally disoriented to two of the four aspects (person, time, place, and situation) of orientation or often disoriented to one aspect of orientation. A level of severity of "0" has been assigned for the motor activity (with intact motor and sensory system) facet, indicating that an examiner has found evidence of motor activity normal. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). A level of severity of "0" has been assigned for the visual spatial orientation facet, indicating that an examiner has found evidence of normal. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system). A level of severity of "1" has been assigned for the subjective symptoms facet, indicating that an examiner has found evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. A higher level of severity of "2" is not warranted unless an examiner finds evidence of three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. A level of severity of "0" has been assigned for the neurobehavioral effects facet, indicating that an examiner has found evidence of one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects. A higher level of severity of "1" is not warranted unless an examiner finds evidence of one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A level of severity of "1" has been assigned for the communication facet, indicating that an examiner has found evidence such as comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. A higher level of severity of "2" is not warranted unless an examiner finds evidence such as inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. The evaluation assigned for cognitive impairment and other residuals of TBI not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facets. Accordingly, for the period from October 23, 2008 to February 17, 2010, the evaluation assigned pursuant to the revised DC 8045 is 10 percent based upon the highest severity level of "1," which was assigned for the following facets: memory, attention, concentration, executive functions; social interaction; orientation; subjective symptoms; communication. However, based upon the Veteran's uncontradicted hearing testimony that he has experienced ongoing headaches that have resulted in him experiencing episodes of incapacitation approximately twice a week, the Board finds that the Veteran is entitled to a disability rating of 30 percent under DC 8100. In this regard, the evidence demonstrates that the Veteran experienced prostrating attacks more than once a month. The evidence, however, does not show that the Veteran's headaches resulted in severe economic inadaptability. Overall, the evidence supports the assignment of an initial disability evaluation of 30 percent, and no more, for the Veteran's residuals from his in-service concussion for the period from October 23, 2008 to February 17, 2010. To that extent, this appeal is granted. 38 C.F.R. §§ 4.3, 4.7. D. Increased Rating in Excess of 40 Percent for the Period from February 18, 2010 At his February 2010 VA examination, the Veteran reported recurrent headaches accompanied by dizziness, fatigue, malaise, and memory impairment marked by forgetfulness of names. He also reported problems with attention and concentration, but denied having problems with executive functions. In elaborating upon his headaches, the Veteran described a constant ache which he rated as a two in severity on a scale of ten. He also reported occasional severe headaches that occur three or four times a month and last as long as one to two days. According to the Veteran, his severe headaches were accompanied by photophobia, nausea, blurred vision, and fatigue which require him to lie down. A physical examination of the Veteran revealed full motor function in all extremities. Sensory function was normal to the Veteran's face and extremities. Gait was normal. A cranial nerve examination revealed reduced visual acuity. A "mini- mental status examination" revealed mild cognitive impairment marked by inabilities to spell "world" backward. The Veteran was unable to intersect a pentagon diagram, which is indicative of mild visual spatial problems. Memory testing revealed that the Veteran was able to recall two out of three items. Overall, the examiner concluded that the Veteran demonstrated mild memory loss with mild deficits in attention and concentration. Judgment was determined to be normal. Social interaction was adjudged to be occasionally inappropriate, but believed to be secondary to the Veteran's psychiatric disorders of PTSD, depression, and anxiety. Visual and spatial orientation was mildly impaired, but did not represent a major problem. The Veteran was able to drive and did not exhibit problems with disorientation. The Veteran was noted as being mildly irritable. Occupationally, the Veteran reported that he was retired from his occupation as a federal mining inspector. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury (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 traumatic brain injury are evaluated separately. A level of severity of "2" has been assigned for the memory, attention, concentration, executive functions facet, indicating that an examiner has found evidence such as objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. A higher level of severity of "3" is not warranted unless an examiner finds evidence such as objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. A level of severity of "0" has been assigned for the judgment facet, indicating that an examiner has found evidence of normal judgment. A higher level of severity of "1" is not warranted unless an examiner finds evidence of mildly impaired judgment, including symptoms such as for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A level of severity of "1" has been assigned for the social interaction facet, indicating that an examiner has found evidence that social interaction is occasionally inappropriate. A higher level of severity of "2" is not warranted unless an examiner finds evidence that social interaction is frequently inappropriate. A level of severity of "0" has been assigned for the orientation facet, indicating that an examiner has found evidence such as always oriented to person, time, place, and situation. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. A level of severity of "0" has been assigned for the motor activity (with intact motor and sensory system) facet, indicating that an examiner has found evidence of motor activity normal. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). A level of severity of "1" has been assigned for the visual spatial orientation facet, indicating that an examiner has found evidence such as mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system). A higher level of severity of "2" is not warranted unless an examiner finds evidence such as moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS (global positioning system). A level of severity of "1" has been assigned for the subjective symptoms facet, indicating that an examiner has found evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. A higher level of severity of "2" is not warranted unless an examiner finds evidence of three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. A level of severity of "0" has been assigned for the neurobehavioral effects facet, indicating that an examiner has found evidence of one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects. A higher level of severity of "1" is not warranted unless an examiner finds evidence of one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A level of severity of "1" has been assigned for the communication facet, indicating that an examiner has found evidence such as comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. A higher level of severity of "2" is not warranted unless an examiner finds evidence such as inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. The evaluation assigned for cognitive impairment and other residuals of TBI not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facets. The evaluation assigned is 40 percent based upon the highest severity level of "2," which was assigned for the following facet: memory, attention, concentration, executive functions. The Veteran is also not entitled to a higher disability rating pursuant to DC 8100. Although the evidence shows that the Veteran experiences headaches characterized by more than one prostrating attack per month, it once again does not show that his headaches have resulted in severe economic inadaptability. In this regard, the VA examiner noted that the Veteran is retired. Moreover, although the Board once again recognizes that the Veteran's headaches are also accompanied by blurred vision, sensitivity to light and sound, nausea, and fatigue, it also notes that the Veteran remains neurologically intact with full motor functioning. Cognitive impairment was only mildly impaired while the Veteran continued to demonstrate full communication skills. Memory impairment and impairment of concentration and attention was present, but also characterized as being mild. The Veteran's judgment was intact and he remained oriented to person, place, time, and situation. Under the circumstances, the Board does not find evidentiary basis to award the next highest rating of 50 percent under DC 8100. Overall, the evidence does not support the assignment of a disability rating in excess of 40 percent, for the period from February 18, 2010, for residuals of the Veteran's in-service concussion. To that extent, the Veteran's appeal for a disability rating in excess of 40 percent during that period for residuals of a concussion is denied. 38 C.F.R. §§ 4.3, 4.7. E. Extraschedular Ratings The Veteran has not submitted evidence showing that the residuals from his in-service concussion has, at any time relevant to this appeal, been markedly interfered with his employment status beyond that interference already fully contemplated by the assigned evaluation. Additionally, there is no indication that his residual symptoms have necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). F. Further Staged Ratings The Board also finds that there is no basis for additional "staged" ratings pursuant to Francisco. Rather, the symptomatology produced by the Veteran's residuals from his in- service concussion has been consistent and is already fully contemplated by the disability ratings assigned throughout the course of his appeal. ORDER For the period before October 23, 2008, an increased rating for residuals of a concussion, currently rated as 10 percent disabling, is denied. For the period from October 23, 2008 to February 17, 2010, a 30 percent rating for residuals of a concussion is granted, subject to the laws and regulations governing the payment of monetary benefits. For the period from February 18, 2010, an increased rating for residuals of a concussion, currently rated as 40 percent disabling, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs