Citation Nr: 1126590 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 06-24 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to a higher initial evaluation for residuals, head injury with tension headaches, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from September 1998 to January 1999 and from October 2003 to April 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 2006, a statement of the case was issued in March 2006, and a substantive appeal was received in July 2006. The Veteran also filed a notice of disagreement in July 2006 regarding the rating assigned for posttraumatic stress disorder (PTSD). However, following the August 2010 statement of the case on that issue, he has not perfected an appeal. Accordingly, that issue it is not before the Board. The Veteran failed to appear for a Board hearing in March 2011. The record reflects that the Veteran lost his employment reportedly due to service-connected posttraumatic stress disorder (PTSD). He is currently attending college, and reportedly declined an application for another job due to worries of exacerbating his PTSD. The RO is requested to contact the Veteran and invite him to submit an application for a total disability rating based upon individual unemployability (TDIU), if he so desires. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability. 2. The Veteran does not have characteristic prostrating headache attacks occurring on average once a month, nor does he have a diagnosis of multi-infarct dementia. 3. From October 23, 2008, the Veteran's head injury residuals do not rate as a "1" under new Diagnostic Code 8045 for any facets of cognitive impairment and subjective symptoms for which a separate compensable rating has not been assigned. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2010). 2. The criteria for a disability rating in excess of 10 percent for residuals, head injury with tension headaches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.124a, 4.130, Diagnostic Codes 8100, 8045, 9304 (2008, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the hearing loss claim, the RO provided the Veteran pre-adjudication notice by a letter dated in May 2005. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, the notice deficiency is nonprejudicial to the Veteran as the service connection claim has been denied. Thus, the downstream issues of assigning an initial disability rating and effective date of award are not implicated. With respect to the head injury residuals claim, the Veteran is challenging the initial evaluation assigned following a grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The Board further notes that, effective October 23, 2008, the criteria for evaluating traumatic brain injuries (TBI) were revised. The Veteran has been notified of these new criteria in the November 2008 Supplemental Statement of the Case (SSOC). He subsequently underwent specialized VA TBI examination and his claim was readjudicated in the August 2010 SSOC. Thus, the Board finds that the Veteran has had ample notice and opportunity to submit additional evidence and/or argument pertaining to the regulatory changes. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records (STRs) and obtained all private and VA clinical records identified by the Veteran as relevant to his claims. There are no outstanding requests to obtain any additional private medical records which the Veteran has both identified and authorized VA to obtain on his behalf. The Board is not aware of any relevant records in the possession of the Social Security Administration. See generally Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). With respect to the hearing loss claim, the Veteran was examined for hearing loss by VA in June 2005 and February 2010. These examinations were conducted under a protocol which satisfies the provisions of 38 C.F.R. § 3.385. Since the last VA examination in February 2010, the Board finds no credible lay or medical evidence which suggests that the current audiometric test results are not accurate for rating purposes. With respect to the claim for residuals of head injury with tension headaches, the Veteran was afforded VA examinations in June 2005, October 2008, and July 2010. The October 2008 and July 2010 examinations were conducted under a protocol consistent with the revised criteria of Diagnostic Code 8045. These extensive examinations contain all findings necessary to decide this claim. Notably, these examiners had benefit of review of the claims folder and an accurate knowledge of the history of injury and symptomatology is reflected in the examination reports. Additionally, these records are supplemented by findings contained in the clinical records which include an extensive TBI neuropsychological consultation in 2009. Since the last VA examination conducted in July 2010, the Board does not find that the lay or medical evidence suggests an increased severity of symptoms to the extent that a higher schedular rating for head injury residuals may still be possible. Thus, there is no duty to provide further medical examination on the initial rating claim. See VAOPGCPREC 11-95 (Apr. 7, 1995). For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claims. 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). Hearing loss The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For VA compensation and pension purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the Veteran has had 2 VA examinations, in June 2005 and February 2010, and each showed that he does not have hearing loss disability as defined by 38 C.F.R. § 3.385. At the time of the each VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 10 10 LEFT 5 5 5 10 5 Speech recognition scores, using the Maryland CNC test, were 100 percent in each ear. The examination reports did not show that the threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz was 40 decibels or greater; or that the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were 26 decibels or greater; or that speech recognition scores using the Maryland CNC Test were less than 94 percent. In order for service connection to be granted for bilateral hearing loss disability, there must be current bilateral hearing loss disability. This is not shown. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). The Board acknowledges the Veteran's perceptions of significant hearing problems and difficulty understanding people. See e.g., Veteran's statement received July 2006. Clearly, the Veteran is competent to describe decreased hearing acuity. However, the Veteran's reports provide no objective measure as to whether his perceived decrease in hearing acuity amounts to actual hearing loss disability as measured by 38 C.F.R. § 3.385. The Veteran's perceptions, while credible, are greatly outweighed by the objective audiometric testing which establish that, to date, the Veteran does not have a current hearing loss disability per VA standards. Since the Veteran does not have hearing loss disability as defined by 38 C.F.R. § 3.385, service connection cannot be granted for hearing loss disability. In McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court held that the requirement that a claimant have a current disability before being granted service connection is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may have resolved by the time VA adjudicates the claim. Unlike McClain, the overwhelming medical evidence in this case demonstrates that the Veteran has not manifested a current hearing loss disability for any period of time during the appeal period. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Head injury with tension headaches The Veteran seeks a rating greater than 10 percent for service-connected head injury with tension headaches. Historically, the Veteran incurred a head injury in 2002 when riding in a Humvee that struck a stump. He also reports being subject to an improvised explosive device (IED) while serving in Iraq in 2004. He attributes current symptoms of cognitive dysfunction and headaches to these head injuries. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has first hand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). As reflected in Fed.R.Evid 701, a lay witness testimony in the form of opinions or inferences constitutes competent evidence when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. Under the Diagnostic Code 8100 for migraine headaches, a 10 percent disability rating is warranted where there are characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating for migraines is warranted where there are characteristic prostrating attacks occurring on an average of once a month over the last several months. Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Notably, the criteria of Diagnostic Code 8100 do not provide a definition for "prostrating." For definitional purposes, the term "prostrate" is synonymous with the term "incapacitated" while the term "prostration" is defined as "complete exhaustion." RIVERSIDE WEBSTER'S II NEW COLLEGE DICTIONARY, p. 889 (1995) Notably, VA regulations define incapacitation in other portions of VA's Rating Schedule as requiring bed rest and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based Upon Incapacitating Episodes, Note 1; 38 C.F.R. § 4.88b, Diagnostic Code 6354. Traumatic brain disease was previously rated under old 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008), which provides that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. will be rated under the Diagnostic Codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8911). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 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 diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). The protocols for TBI were revised during the pendency of this appeal, and the Veteran's April 2010 communication is interpreted as a request for consideration of the new criteria. See 73 Fed. Reg. 54693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a Veteran is to be rated under the old criteria for any periods prior to October 23, 2008 but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). Revised Diagnostic Code 8045 (2010) states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2010). Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100- percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Note (5): A Veteran whose residuals of TBI are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). At the outset, the Board notes that the Veteran is in receipt of a separate 10 percent rating for tinnitus which is the maximum available schedular rating for this disorder whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran is also in receipt of a separate 50 percent rating for PTSD, which contemplates symptoms such as impairment of affect, speech, short and long term memory, abstract thinking, mood, motivation, and sleep as well as difficulty in understanding complex commands and in establishing and maintaining effective work and social relationships. 38 U.S.C.A. § 4.130, Diagnostic Code 9411. Additionally, the Veteran has also been awarded VA compensation for orthopedic injuries which include the left shoulder (20 percent), the right hip (10 percent), the upper back (10 percent), and ulnar neuritis of the left upper extremity (10 percent). He holds a noncompensable rating for residuals of crush injury to the right foot. Thus, the Veteran has already been awarded compensation for the cognitive impairment aspects of disability identified in the table entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" which includes memory, attention, concentration, executive functions, judgment, social interaction, orientation, visual spatial orientation, neurobehavioral effects, communication and consciousness. Thus, the Board will focus its discussion on potential factors for which compensation has not been awarded, such as abnormal motor activity due to apraxia and the purely subjective symptoms not captured with the 50 percent rating under Diagnostic Code 9411, such as headaches, hypersensitivity to sound, fatigability, blurred or double vision, etc. See generally Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (VA is required to discuss all material evidence in support of a claim but is not required to discuss and analyze the entire evidentiary record). On VA general medical Compensation and Pension (C&P) examination in June 2005, the Veteran indicated that he would get fairly severe headache pain lasting 30 to 60 minutes, and then the headaches would resolve. He would have no visual change, scotoma, aura, nausea, vomiting, photosensitivity, or throbbing, but it would cause a fairly sharp pain. The headaches occurred once or twice a week and he took Tylenol to control them. They were not causing functional impairment. Otherwise, the Veteran denied symptoms such as eye problems, nausea, vomiting, poor appetite and dizziness. Following examination, the Veteran was diagnosed was tension headaches which would occur once or twice a week, and last half an hour to one hour, and which did not cause any functional or occupational impairment. Notably, the examiner found no abnormality of the eyes (including movement), a grossly intact neurologic examination, motor examination showing normal and symmetrical strength, sensory without focal deficits and coordination within normal limits. In pertinent part, an August 2005 private orthopedic consultation noted the absence of muscle weakness with neurologic function intact. A September 2005 VA physical therapy consultation also noted no neurologic deficits. A February 2006 VA clinical record included the Veteran's report of migraine headaches. He was requesting an appropriate medication as trials of Tylenol and Ibuprofen worsened his gastroesophageal reflex disease (GERD) symptoms. At that time, the Veteran described both "tension" headaches which caused muscle tension in his neck and shoulders as well as headaches which were "quite intense" manifested by throbbing, photosensitivity, nausea and vomiting (N/V) and aura. He had prior relief of symptoms with Vicodin, but wanted to avoid narcotic use. The physician prescribed Zomig and a beta-blocker. An April 2006 VA clinical record included the Veteran's report of less frequent headaches since taking blood pressure medications. He otherwise described the incidence of migraine headaches to have been "reduced considerably" and having headaches "at times" in July 2006. A neurologic examination was essentially unremarkable. In a statement received in July 2006, the Veteran described his headache disorder as follows: I disagree with the decision regarding my headaches because the tension headaches I have are now accompanied by migraines on a regular basis. I have been put on blood pressure medication for the migraines, which has reduced the frequency of my headaches, but I still get them at least once a week, and they interfere with my ability to work or enjoy social activities. An August 2007 VA primary care follow-up appointment for migraines included the Veteran's report that his medications were "working well." He had only used Zomig once when he stopped taking Atenolol, but had since resumed use of Atenolol. An October 15, 2008 VA clinical record reported as follows: "Atenolol ... significantly reduces the number of migraines he experiences to about 1 every 2 mths. Zomig work works fairly well when needed, though it gives him chills/fatigue/nausea; 'still better than having migraines.'" On VA C&P examination also on October 15, 2008, the Veteran reported the onset of tension headaches in approximately 2004 which occurred 1 to 2 times per week for the following 3 to 4 years. These headaches, which were manifested by upper neck pain absent nausea, vomiting, photophobia or aura, were moderate in intensity and would last 30 minutes to all day. The symptoms were decreased considerably with use of Tylenol/ibuprofen. However, the Veteran had not had these types of headaches over the past 9 months. The Veteran also described more severe, throbbing migraine headaches which occurred 5 to 6 times per year over the past year, in general. The symptoms included ice pick type pain over the right temple, along with photophobia, phonophobia, nausea, and occasional vomiting. Over the next 5-10 minutes, the pain would radiate to the left temporal area as well. The headaches would last from 2-3 hours up to 2 days at a time. An increased frequency of headaches occurred during times of psychological stress. They had also been triggered with large sugar intakes which he had stopped. The Veteran indicated that his migraine headaches were prostrating if not treated early. Zomig worked fairly well, and if taken early, it would reduce the severe throbbing pain to a mild bitemporal aching pain. However, due to side effects of Zomig, the Veteran could not use his medication at work. The Veteran estimated missing approximately 7 days over the past year due to his headaches. The Veteran also described brief episodes of vertigo, lasting 10 to 15 seconds in duration, when getting up in the middle of the night. He did not describe true phonophobia or photophobia aside from headaches. The Veteran denied weakness, paralysis, visual problems, seizures, erectile dysfunction (ED), bowel dysfunction or bladder dysfunction. He had occasional stuttering problems. He had left upper extremity numbness due to ulnar neuritis. He admitted to fatigue and malaise, reporting generally feeling tired at work. He had mobility problems due to right hip and knee injuries. Following examination and review of the claims folder (which included clinical consultation for headaches), the offered the following diagnoses and assessment: Diagnosis: Mild TBI Tension headaches Migraine without aura PTSD L ulnar neuropathy Assessment: 30 yo man with concussive head injury X 3 in the service, one due to MVC with brief LOC. He has ongoing migraine headaches which were as likely as not triggered by his IED blast in 2004 which are occurring 5-6X/year and are prostrating if not treated early, but in general are fairly well controlled with atenolol and Zomig at present. He has suffered mild occupational dysfunction due to his migraines, missing ~ 7 days of work over the past year. His tension headaches are less than likely related to his TBIs and seem to have subsided recently, with no tension headaches X 9 months. He has e/o short term memory problems, L ulnar distribution hypoesthesia and hyperthesia as well as finger abduction weakness c/w ulnar neuropathy at the elbow. Examination is otherwise non-focal. Given his multiple concussive head injuries and concurrent PTSD, recovery from his TBI has likely been prolonged and incomplete. It is as likely as not that his ongoing ST memory impairment, concentration problems and some degree of his affective disturbances are due to residuals from these TBIs, though certainly his PTSD with associated sleep disturbance is the predominant contributor to these neuropsychiatric sx. His impaired memory/concentration have caused him occupational dysfunction, which was his former occupation. Capacity to manage financial affairs/mental competency for managing VA benefits: Good. Severity of TBI, primary ongoing manifestations and prognosis: Mild, see above. With ongoing treatment for PTSD, prognosis for improvement in cognitive function and mood is fairly good. In pertinent part, the Veteran's VA clinical records include a September 2009 TBI consultation. At that time, the Veteran's main neurologic complaints involved severe forgetfulness and concentration problems. The Veteran described throbbing tension headaches which could last an entire day. He also described migraine headaches, located at the right or left temple area, accompanied by aura, increased tinnitus, phonophobia, photosensitivity and occasional alteration of balance. These headaches, which had improved over time, occurred "2x/mo." The examiner recorded the Veteran's perceptions of neurobehavioral inventory as none for feeling dizzy, nausea, sensitivity to light, and change in taste/smell; mild for loss of balance, poor coordination, vision problems, hearing difficulty, numbness or tingling in body parts, feeling depressed or sad, irritability, and poor frustration tolerance; moderate for sensitivity to noise and abnormal appetite; and severe for concentration, difficulty making decisions, slowed thinking, fatigue, sleep difficulty, and feeling anxious or tense. Overall, the VA clinician evaluated the Veteran's cognitive and affective problems as likely related to issues such as insomnia, PTSD, depression and/or post-concussion syndrome (PCS). The Veteran was also assessed with chronic headaches, rule out migraine and tension headaches, which could be related to insomnia, PTSD, or PCS. An October 2009 VA neuropsychiatry consultation to evaluate memory and concentration difficulty reported an assessment of "mild TBI" and found that the etiology for the Veteran's complaints were multi-factorial including PTSD, opiate treatment and secondary to TBI. In April 2010, the Veteran submitted a statement alleging a worsening of his headache disorder. On VA C&P TBI examination in July 2010, the Veteran complained of mild memory loss but there was no objective evidence of it on testing. His judgment was normal and his social interaction was routinely appropriate. He was always oriented to time and person, and his motor activity was normal. Visual spatial orientation was normal. Subjective symptoms did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. He did not have neurobehavioral effects that interfered with workplace interaction or social interaction. He was able to communicate by spoken and written language, and to comprehend spoken and written language, and his consciousness was normal. He was currently unemployed. With respect to headaches, the Veteran reported the occurrence of stress-induced migraine headaches approximately once per month which were "not always prostrating" or were "prostrating about half the time that they occur now." In another section, it was reported that the Veteran's headaches were not prostrating, lasted a few hours to a few days, and were responsive to use of Zomig and/or morphine which enable quick resolution of the headache. These headaches were sometimes associated with light and sound sensitivity. The examiner indicated that the Veteran's headaches were migraine and tension type, and that they were not prostrating most of the time. They were minimally disabling overall. His headaches had improved over time and were responsive to pain medications he was on. The examiner further indicated that the Veteran's TBI residuals had not been characterized by dizziness or vertigo, seizures, balance problems and coordination problems, pain, autonomic dysfunction, numbness, paresthesias or other sensory changes, weakness or paralysis, mobility problems, fatigue, malaise, other cognitive symptoms, bowel problems, bladder problems, erectile dysfunction, vision problems, speech/swallowing difficulty, decreased sense of taste/smell, endocrine dysfunction or cranial nerve dysfunction. The examiner interpreted the October 2009 neuropsychological testing results as showing a mild deficit in information processing speed and efficiency. Overall, the VA TBI examiner provided the following impression: IMPRESSIONS: [The Veteran] is a 31-year old veteran with a history of mild traumatic brain injury, post-traumatic stress disorder, chronic pain, migraines, and insomnia seen for neuropsychological assessment. His premorbid cognitive abilities are estimated to fall in the above average range. While the majority of test performances fell within this expected range, there was evidence of a mild deficit in information processing speed/efficiency. His verbal and nonverbal reasoning skills continue to be consistent with expectation, as do performances on most measures of attention and memory; however, below average list recall performance is consistent with his noted inefficient information processing and does not suggest a deficit in memory consolidation or retention per se. On additional memory tasks, performances were well within expected limits, including perfect performance on a complex short-term memory task, which is typically quite sensitive to short-term difficulties. Executive functioning performances were mostly within the expected range, though a few performances fell slightly below expected limits, and were more supportive of variable processing speed than a deficit in cognitive control functions such as inhibition or set-switching. [The Veteran] is a highly intelligent individual, who continues to maintain many cognitive strengths, particularly in his remote memory and reasoning skills. Etiology of his mild test findings is likely primarily due to his PTSD symptoms, as they continue to be predominant in his daily life. His history of TBI could also be contributing; though, given his mild findings in the presence of PTSD, pain, migraines, and poor sleep, it is unclear what his optimal functioning would be in the absence of these confounds. Continued aggressive management of PTSD symptoms, pain, and sleep likely offer the best possibility for improved daily functioning, along with the utilization of strategies and coping skills. ... Applying the criteria to the fact of this case, the Board finds that criteria for a rating greater than 10 percent for the Veteran's residuals of head injury have not been met for any time during the appeal period. In this respect, the credible lay and medical evidence demonstrates that the Veteran does not have characteristic prostrating headache attacks occurring on average once a month, that he does not have a diagnosis of multi-infarct dementia, and that his head injury residuals do not rate as a "1" under new Diagnostic Code 8045 for any facets of cognitive impairment and subjective symptoms for which a separate compensable rating has not been assigned. At the outset, the Board notes that the Veteran is clearly competent to describe headache symptomatology as well as the frequency, duration and severity of such symptomatology. On review of the entire claims folder, the Board also finds no reason to impeach the overall credibility of this combat exposed Veteran. However, the Veteran has provided some conflicting recollections regarding the frequency, duration and severity of his headaches which must resolved. After a review of the entire evidentiary record, and given due account to the benefit of the doubt rule under 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, the Board must find that the Veteran does not describe a migraine headache disorder which meets or more nearly approximates characteristic prostrating attacks occurring on an average once a month, as required for a 30 percent rating under Diagnostic Code 8100. For example, the Veteran's initial description of his headache disorder in June 2005 described headaches, lasting from 30 to 60 minutes, which did not cause functional impairment. In short, the Veteran did not reasonably describe any attacks of prostrating headaches. Thereafter, in July 2006, the Veteran reported migraine headaches which occurred at least once a week that "interfere[d]" with his ability to work and enjoy social activities. However, the Veteran again did not reasonably describe any attacks of prostrating headaches which becomes more clear when viewing this statement in the context of the entire evidentiary record. The record next reflects statements in October 2008 wherein the Veteran reported migraine headaches that occurred 5 to 6 times over the past year. Even assuming all of these episodes were prostrating in nature, the frequency of such episodes would amount to 1 attack every other month which does not support a 30 percent rating under Diagnostic Code 8100. However, the Veteran himself indicated that not all of these headaches were prostrating in nature. Notably, in October 2008, the Veteran reported that he used Zomig to reduce the severity of a prostrating migraine headache attack. An August 2007 VA clinical record noted that the Veteran had only taken Zomig once since taking Atenolol and that his medications were "working well." This type of evidence tends to show that the Veteran only needed to use Zomig on one occasion over a long period of time to treat a prostrating headache attack. Overall, the Veteran's own descriptions of headache symptomatology discussed above do not meet, or more nearly approximate, the criteria for a 30 percent rating under Diagnostic Code 8100 as they describe prostrating migraine attacks occurring less frequent than once per month. The record also includes a September 2009 VA TBI consultation in the clinical setting wherein the Veteran recollected a history of migraines that occurred 2 times per month, purportedly an "improvement" over time. At that time, the Veteran did not specifically describe prostrating headache attacks. At his July 2010 VA C&P examination, the Veteran provided a confusing recollection regarding the frequency of prostrating headache attacks, reporting migraines once per month which were not always prostrating or were otherwise prostrating about half of the time. Fairly interpreted, the Veteran is again describing prostrating migraine attacks which occur less frequent than once per month, which is consistent with the VA examiner's impression in July 2010 that these headaches were not prostrating most of the time and minimally disabling overall. Even with consideration of the reasonable doubt rule under 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, as well as the approximating provisions of 38 C.F.R. § 4.7, the Board finds that the credible and consistent lay report of symptomatology by the Veteran himself demonstrates that he has suffered from prostrating migraine attacks that occurred considerably less frequent than once per month for the entire appeal period. The confusing recollections in September 2009, which are not consistent with his past reported history, are greatly outweighed by his more accurate and descriptive reports of symptomatology. As such, the Board finds that a higher rating pursuant to the criteria of Diagnostic Code 8100 is not warranted. The Board next notes that a rating in excess of 10 percent is potentially available under the former criteria for Diagnostic Code 9304. However, the medical evidence does not show, and it is not contended, that the Veteran has been diagnosed with multi-infarct dementia. To the contrary, the recent neuropsychological testing primarily concluded that the Veteran had, at best, mild TBI residuals. Moreover, the Board finds that a disability rating in excess of 10 percent for TBI residuals is not warranted under the new Diagnostic Code 8045 effective October 23, 2008. On testing in October 2009, the Veteran had a mild deficit in information processing, but this was likely due to his PTSD. At worst, there is objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions. Were it not for the 50 percent rating currently assigned for PTSD, a level 2 evaluation could be assigned for the memory, attention, concentration, executive functions facet. However, the examiner in July 2010 indicated that the Veteran's PTSD was contributing to his cognitive and neurobehavioral complaints. The manifestations of the Veteran's PTSD are not clearly separable from his head injury residuals. Since this is the case, a separate evaluation may not be assigned for each condition. Moreover, according to the July 2010 examination, the Veteran has no impairment of judgment resulting in a level 0 for this facet. Social interaction is routinely appropriate, resulting in a level 0 for this facet. The Veteran is always oriented to person, time, place, and situation, resulting in a level 0 for this facet. His motor activity and visual spatial orientation are normal, resulting in level 0's for these facets. Subjective symptoms do not interfere with work, resulting in a level 0 for this facet. The Veteran does not have any neurobehavioral effects that interfere with workplace interaction, social interaction, or both, resulting in a level 0 for this facet. He is able to communicate by spoken and written language, and to comprehend spoken and written language, resulting in a level 0 for this facet. To summarize, the Veteran's highest facet level would be 2, and all others are 0. The 2 facet level would be for memory, attention, concentration, executive functions, but these manifestations cannot be separated from his PTSD. A level 2 evaluation for this facet would only result in a 40 percent rating, whereas the Veteran has a 50 percent rating for his PTSD, and so the 40 percent rating may not be assigned under residuals, head injury with tension headaches. NOTE (1). None of the other facets warrant a level of evaluation of 1 or higher. Accordingly, rating the Veteran under new Diagnostic Code 8045, based on the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" does not help the Veteran. In so holding, the Board is cognizant of the Veteran's own perceptions of neurobehavior as reported on the September 2009 VA TBI consultation, wherein he perceived a level 3 "severe" for concentration, difficulty making decisions, slowed thinking, fatigue, sleep difficulty, and feeling anxious or tense. However, actual neuropsychological evaluation in September 2009 and July 2010 found at best mild TBI residuals and concluded that the cognitive and attention problems were primarily due to PTSD. The Board has considered whether a level "3" rating for these symptoms could warrant a higher rating under Diagnostic Code 8045 which would trump, or replace, the currently assigned 50 percent rating under Diagnostic Code 9411. However, the Board finds that the opinions of the VA specialists, who have concluded that the Veteran's cognitive and attention problems are "mild" in degree regardless of etiology, greatly outweigh the Veteran's own subjective perceptions of disability. In this respect, the VA examiners have greater training and expertise than the Veteran in evaluating TBI residuals and have based their opinion on interview of the Veteran, examination of the Veteran, a review of the claims folder and specialized testing. Finally, the medical evidence does not show, and the Veteran does not contend, that he manifests any abnormal motor activity due to his TBI residuals as opposed to the service-connected orthopedic and neurologic injuries. The Board acknowledges the Veteran's evaluation at one point for erectile dysfunction in connection with his psychiatric medications, but the VA C&P examiners have found no neurologic impairment attributable to the TBI injury. Furthermore, the Board does not find three or more additional subjective symptoms (other than those supporting a compensable rating) which could support a level "1" rating under Diagnostic Code 8045. The Board has considered all potentially applicable provisions of 38 C.F.R. Part 4, whether or not they have been raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating. Extraschedular Rating The Board recognizes that the Veteran and the record may be understood to suggest impact of the service-connected disability on the Veteran's work functioning. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. In this case, VA has evaluated the Veteran's reported symptomatology under many different diagnostic criteria. At this time, the Veteran has been assigned separate compensation ratings for behavioral and cognitive impairment (Diagnostic Code 9411), tinnitus (Diagnostic Code 6260) and headaches (Diagnostic Code 8100). The rating criteria allow for higher ratings still with the criteria under the current Diagnostic Code 8045 being unlimited in the scope of symptoms which may be considered. In totality, the Board finds that the rating criteria and assigned schedular ratings contemplate not only the Veteran's symptoms but the severity of the disability. For these reasons, referral for extraschedular consideration is not warranted. The Board also notes that the Veteran lost his full-time job during the appeal period, reportedly due to PTSD symptomatology. The record also reflects the Veteran's report that he declined an application for another job due to worries of exacerbating his PTSD and that, instead, the Veteran has returned to college. He has not expressly claimed a total and permanent inability to work due to service-connected disability, even on a temporary basis. Additionally, the Veteran has multiple service-connected disabilities and his PTSD disability rating is not currently before the Board. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, as part of a claim for increased compensation. However, the full extent of the Rice holding has yet to be determined. In this case, the Veteran has multiple service-connected disabilities and the caselaw is not clear as to whether a TDIU issue must be adjudicated with each increased rating claim. See In re Leventhal, 9 Vet. App. 386, 389 (1996) (holding that TDIU is separate claim where based upon multiple service-connected disabilities). Cf. Rice, 23 Vet. App. at 454 (referring to "new" evidence of unemployability being submitted within one year of an initial rating award as raising a TDIU issue pursuant to 38 C.F.R. § 3.156(b)). The caselaw is also unclear whether the Board must remand a raised TDIU issue, or refer the issue to the RO for appropriate action. See Rice, 23 Vet. App. at 454, Footnote 7 (implying that it may be appropriate for the Board to refer rather than remand a TDIU issue by citation to Holland v. Brown, 6 Vet. App. 443 (1994)). At this time, the Board finds that a claim of entitlement to TDIU has not been reasonably raised and, as such, is not currently before the Board at this time. However, as the Veteran is potentially eligible for such benefit, the Board finds that the proper course at this time is to refer the matter to the Veteran's attention to determine whether he intends to seek the TDIU benefit. In sum, the Board finds that the preponderance of the evidence is against the claim and there is no doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for hearing loss disability is not warranted. A higher rating than 10 percent for residuals, head injury with traumatic headaches, is not warranted. ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs