Citation Nr: 1127341 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 06-34 303A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a visual acuity disorder, claimed as an eyesight problem. 4. Entitlement to an initial rating in excess of 10 percent prior to October 23, 2008, for residuals of a head injury. 5. Entitlement to a disability rating in excess of 40 percent effective October 23, 2008, for residuals of a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to November 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Court has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Therefore, in the present case, the Veteran's service connection claim for PTSD has been restated as noted on the front page. In May 2011, the Veteran testified before a Veterans Law Judge, seated at the RO. A written transcript of this hearing has been associated with the claims file. The Veteran had also perfected appeals of the RO's denials of service connection for bilateral hearing loss and tinnitus. In an April 2011 rating decision, however, service connection was granted for these disabilities. Because the appellant was awarded service connection for these disabilities, they are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent evidence of record indicates the Veteran has a current diagnosis of a cognitive disorder which is at least in part due to an in-service head injury. 2. In June 2006, prior to the promulgation of a decision regarding the issues of service connection for hypertension and for a visual acuity disorder, the Board received notification from the appellant that a withdrawal of the appeal of these issues was requested. 3. Prior to October 23, 2008, the Veteran's residuals of a head injury included frequent non-prostrating headaches. 4. Effective October 23, 2008, the Veteran's residuals of a head injury result in mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. CONCLUSIONS OF LAW 1. Entitlement to service connection for a cognitive disorder is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). 2. The criteria for withdrawal of the appeal for service connection for hypertension and for a visual acuity disorder by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010). 3. The criteria for a rating in excess of 10 percent, prior to October 23, 2008, for residuals of a head injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 4.3, 4.7, 4.14 (2010); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). 4. The criteria for a rating in excess of 40 percent, effective October 23, 2008, for residuals of a head injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.159, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8045 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In February 2003, February 2008, December 2008, and December 2010 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the February 2008 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the December 2005 and May 2009 adverse determinations on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the issue of an increased initial rating for residuals of a head injury, in cases such as this, 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 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded VA medical examinations on several occasions, most recently in November 2010. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. In May 2011, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. II. Service connection for a psychiatric disability The Veteran seeks service connection for a psychiatric disability, claimed as PTSD. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be awarded for certain disabilities, such as psychoses, which manifest to a compensable degree within a statutorily-prescribed period of time. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. During the pendency of this appeal, 38 C.F.R. § 3.384 was added to further define "psychoses" as found at 38 C.F.R. § 3.309. 38 C.F.R. § 3.384 (effective August 28, 2006). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 38 C.F.R. § 3.304(f), the regulation governing the establishment of service connection for PTSD, was modified effective July 13, 2010. See 68 Fed. Reg. 39843-52 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010) (correcting a clerical error in the Federal Register publication of July 13, 2010). This change is effective for all PTSD claims, such as the present claim, currently pending before VA. This change had the effect of liberalizing the evidentiary requirements for verification of a Veteran's claimed stressor. As revised, 38 C.F.R. § 3.304(f)(3) provides a Veteran's lay testimony alone may establish the incurrence of an in-service stressor if such stressor is consistent with the circumstances of the Veteran's service, involves a fear of hostile military or terrorist activity, and is found by a VA psychiatrist or psychologist to be sufficient to support a diagnosis of PTSD. Clear and convincing evidence to the contrary may, however, rebut such a presumption. Id. Central to any service connection claim is a current diagnosis of the claimed disorder. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Where, however, as here, the overall evidence of record suggests against a diagnosis of the claimed condition the Board finds that holding to be distinguished. In the present case, the preponderance of the psychiatric treatment records is against a finding of a current diagnosis of PTSD. Upon receipt of the Veteran's claim, he was afforded a September 2005 VA psychiatric examination. Upon examination of the Veteran and review of the claims file, the examiner concluded a current psychiatric diagnosis was not warranted. More recently, the Veteran was afforded a VA psychiatric examination in November 2010. His reported symptoms included nightmares, anxiety, irritability, insomnia, depression, and social isolation. At that time, he denied any combat exposure, and stated he worked as a general laborer during service. The Veteran was noted to have had a head injury in service, as the result of a ship's window falling and striking his head, rendering him unconscious. After examining the Veteran and reviewing the claims file, the examiner, a psychiatrist, diagnosed anxiety disorder, depressive disorder, and cognitive disorder. He stated that a diagnosis of PTSD was not warranted, as the Veteran was not exposed to a stressor such as combat, military trauma, or some other situation involving personal danger. The Veteran's cognitive disorder was, however, at least as likely as not, according to the examiner, at least in part related to his head injury while on active military service. Because a cognitive disorder has been diagnosed, which is at least in part due to his service-connected head injury, service connection is likewise warranted for a cognitive disorder. According to the November 2010 VA examination report, the Veteran has a cognitive disorder which is at least in part related to his traumatic brain injury. Therefore, service connection for a cognitive disorder is warranted. In considering the Veteran's claim of service connection for a psychiatric disability, the Board finds that service connection for PTSD is not warranted. As was noted above, the record does not reflect a corroborated stressor, and the Veteran did not serve in combat, according to his service personnel records, so a stressor is not presumed. Based on the diagnostic criteria for PTSD, the VA examiner concluded in November 2010 that a diagnosis of PTSD was thus not warranted. In so finding, the Board notes that the Veteran has in the past been diagnosed with PTSD by various VA outpatient examiners. These diagnoses, however, were based on the Veteran's own self-reported history alone and not on the presence of any corroborated stressor incident. For example, in November 2006, PTSD was diagnosed after the Veteran reported he had military service in Korea, a claim which is not substantiated in the record. The Veteran also claimed, during a November 2010 VA traumatic brain injury examination, participation in combat during service, a claim which is also not substantiated within the record. Additionally, he has shown himself to be a poor historian. Among other incongruent claims, he stated in February 2007 that he had two daughters, but later reported in November 2007 that he had no children, and in February 2011, stated he had one child. Thus, these diagnoses of PTSD, based as they are on uncorroborated stressors, are of little probative value. In conclusion, the evidence of record suggests the Veteran has a cognitive disorder as a result of a head injury sustained during active military service. Service connection is thus warranted for a cognitive disorder. III. Service connection-Hypertension and a visual acuity disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the appeal as it pertains to the issues of service connection for hypertension and for a visual acuity disorder; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and his appeal is dismissed as it pertains to the same. IV. Increased rating-Traumatic brain injury The Veteran seeks a disability rating in excess of 10 percent prior to October 23, 2008, and in excess of 40 percent thereafter, for a traumatic brain injury. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, however, the assignment of initial ratings is under consideration, the level of disability in all periods since the effective date of the grant of service connection must be taken into account. Fenderson v. West, 12 Vet. App. 119 (1998). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. The Veteran's residuals of a head injury have been rated under Diagnostic Code 8045-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 8045, for brain disease due to trauma, was modified effective October 23, 2008. See 73 Fed. Reg. 54693 (Sept. 23, 2008). When a law or regulation changes while an appeal is pending, the version most favorable to the claimant applies, absent legislative intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). Revised statutory or regulatory provisions, however, may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 7104(c); VAOPGCPREC. 3-2000 (April 10, 2000); Rhodan v. West, 12 Vet. App. 55, 57 (1998). Although the amended criteria apply to claims received by VA on and after October 23, 2008, a Veteran whose residuals of a traumatic brain injury were rated under the pre-amended regulations may request review under the revised criteria, irrespective of whether his or her disability has worsened since the last review. In the present case, the Veteran's claim has in fact been considered under both the old criteria, as well as the new criteria for the period commencing October 23, 2008. As was noted above, a 40 percent disability rating has been awarded under the new criteria effective the effective date of the regulatory change. Additionally, because he was afforded both notice of, and consideration under, the revised criteria within an April 2011 supplemental statement of the case, no prejudice to the Veteran results from Board adjudication of this issue at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Prior to the regulatory change of October 23, 2008, Diagnostic Code 8045 provided that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. were to 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). Subsequent to the schedular changes, Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from traumatic brain injury (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. Cognitive impairment is to be evaluated under the table entitled "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. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Any residual with a distinct diagnosis, however, 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. Emotional/behavioral dysfunction is to be evaluated under 38 C.F.R. § 4.130 (Schedule of Ratings-Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are to be evaluated under the criteria in the table entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Physical (including neurological) dysfunction is to be evaluated 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. Residuals not listed here that are reported on an examination report are to be evaluated under the most appropriate diagnostic code. Each condition shall be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and each separately rated condition shall be combined under 38 C.F.R. § 4.25. 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. Consideration shall also be given the need, if any, 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. 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." Not every facet has every level of severity, however. 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. A 100-percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is to be assigned 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. If, however, 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 (October 23, 2008). As noted above, the Veteran's original award cited Diagnostic Code 8100, for migraine headaches. Under this code, migraine headaches resulting in characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent disability rating. Characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent disability rating. Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are evaluated as 50 percent disabling. 38 C.F.R. § 4.124a, Code 8100. Prostration has not been defined by the rating criteria, or by the U.S. Court of Appeals for Veterans Claims (Court). By way of reference, the Board notes that according to Webster's New World Dictionary of American English (p. 1080, 3rd College Ed. (1986)), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary (p. 1554, 31st Ed. (2007)), in which "prostration" is defined as "extreme exhaustion or powerlessness." Upon receipt of his claim, a VA medical examination was afforded the Veteran in August 2005. He reported a history of recurrent headaches following a head injury during military service. He stated his headaches occurred daily, and lasted for several hours; however, they were not prostrating. On objective physical examination, cranial nerves were within normal limits, and reflexes were 2+ in the upper and lower extremities. Sensation and motor strength were also intact in both the upper and lower extremities. The final impression was of status post-head injury, with skull fracture. Post-concussion syndrome was also suspected. Another VA medical examination was afforded the Veteran in November 2010. He reported a head injury during military service, resulting in chronic headaches. Currently, his headaches occurred approximately 10 times per month, lasting for approximately 3 hours on each occasion. He stated he was able to work and otherwise function during his headaches, but he required medication for his pain. He denied any loss of sensation, dizziness, vertigo, numbness, tingling, burning, weakness, or paralysis. Some depression and irritability in mood was reported, however. He also reported chronic fatigue. On objective physical evaluation, the Veteran's cranial nerves were within normal limits, and his coordination was also normal. Reflexes, sensory response, and motor strength were within normal limits in the upper and lower extremities, with the exception of some diminished sensory response in the left sciatic nerve of the left lower extremity. Cerebellar function was intact, but Romberg's sign was positive for vertigo. Babinski's sign was negative. On mental evaluation, the Veteran was oriented to time, place, and person. According to the examiner, the Veteran's head injury has resulted in diagnoses of post-concussion syndrome, hearing loss, vertigo, and migraine headaches. As part of a November 2010 VA psychiatric examination, a psychiatrist completed a VA traumatic brain injury facet worksheet. A level of severity of "2" was assigned for the memory, attention, concentration, executive functions facet, indicating that the examiner found 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 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" was assigned for the judgment facet, indicating that the 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 impairment 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 "0" was assigned for the social interaction facet, indicating that the examiner has found evidence that social interaction is routinely appropriate. A higher level of severity of "1" is not warranted unless an examiner finds evidence that social interaction is occasionally inappropriate. A level of severity of "0" was assigned for the orientation facet, indicating that the examiner has found evidence the Veteran was 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 occasional disorientation to one of the four aspects (person, time, place, or situation) of orientation. A level of severity of "0" was 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" was assigned for the visual spatial orientation facet, indicating that the examiner found evidence of normal visual spatial orientation. A higher level of severity of "1" is not warranted unless an examiner finds evidence of at least mild impairment, resulting in the examinee occasionally getting lost in unfamiliar surroundings, or having difficulty reading maps or following directions, but able to use assistive devices such as GPS (global positioning system). A level of severity of "2" has been assigned for the subjective symptoms facet, indicating that the examiner has found 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 the 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 "0" has been assigned for the communication facet, indicating that the examiner has found evidence such as an ability to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as occasional impairment of comprehension or expression, or both, of either spoken language or written language, with an ability to communicate complex ideas. The Veteran has also received extensive VA outpatient medical care during the pendency of this appeal. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis may focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the issue on appeal. Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran has consistently reported headaches and pain in the frontal lobe and forehead area of his head. He has been seen at the local VA pain clinic, as well as having been afforded medication, with limited relief of his symptomatology. He was afforded a VA neurobehavioral consultation in April 2008, at which time a diagnosis of a vascular cognitive disorder was given. In September 2008, he was treated for abdominal pain at a local VA medical center emergency room, and no cognitive impairment was noted at that time. A cognitive disorder was again confirmed in October 2008, however, following another VA neurobehavioral consultation. In May 2011, the Veteran testified before a Veterans Law Judge, seated at the RO. He stated that his head injury in service resulted in such residuals as a profound loss of hearing, occasional mental confusion, and post-traumatic stress. He asserted that an increased rating was thus warranted. Considering first the prior brain injury criteria, under which a disability rating of 10 percent has been awarded prior to October 23, 2008, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent during this time period. The Veteran is currently in receipt of the highest assignable evaluation available under Diagnostic Code 8045 for purely subjective complaints, and a rating in excess of 10 percent is not assignable under Diagnostic Code 9304 in the absence of a diagnosis of multi-infarct dementia, as a consequence of brain trauma. In this instance, the evidence of record is negative for a diagnosis of multi-infarct dementia. Nevertheless, the Veteran's increased rating claim may be considered under the aforementioned analogous Diagnostic Code 8100, for migraine headaches. According to the various VA outpatient treatment records as well as the August 2005 VA medical examination report, the Veteran's headaches, while frequent during the appeals period, were not prostrating. Thus, a disability rating in excess of 10 percent is not warranted under Diagnostic Code 8100. Likewise, these medical records and other competent evidence of record do not reflect purely neurological disabilities or other objective disorders resulting from his service-connected head injury. Thus, separate disability ratings for such residuals are not warranted under the prior rating criteria for brain disease due to trauma. The evidence of record also does not support a disability rating in excess of 40 percent commencing October 23, 2008, under the prior criteria. As was already discussed above, the Veteran's residuals of a head injury have not included purely neurological disabilities or other objective disorders for which separate ratings may be awarded. Additionally, his headaches have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, as would warrant a 50 percent evaluation after October 23, 2008. Furthermore, because the Veteran has not displayed a level of disability in excess of that currently displayed, a staged rating, other than as already awarded, is not warranted at the current time. See Fenderson, 12 Vet. App. at 119. The Board must next consider the new or revised criteria for brain injury, which, as already discussed above, may not be applied effective prior to October 23, 2008. 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 in the present case, is 40 percent based upon the highest severity level of "2," as determined by the November 2010 examiner, based on impairment of the following facets: memory, attention, concentration, executive functions; subjective symptoms. As the evidence of record does not demonstrate a severity level in excess of "2" for any of the facets of brain injury, the next higher rating of 70 percent is not warranted. Furthermore, because the Veteran has not displayed a level of disability in excess of that currently displayed, a staged rating, other than as already awarded, is not warranted at the current time. See Fenderson, 12 Vet. App. at 119. Pursuant to the revised criteria found at Diagnostic Code 8045, the Board has considered any additional impairment potentially resulting from the Veteran's TBI, to include loss of sensory function. At least one examiner has suggested the Veteran's hearing loss and tinnitus result from or are related to his brain injury; however, the Board notes the Veteran has already been granted separate disability ratings of 100 percent and 10 percent, respectively, for his hearing loss and tinnitus, both effective from December 12, 2002. Thus, consideration of the same impairment under Diagnostic Code 8045 would amount to pyramiding, a practice forbidden by regulation. 38 C.F.R. § 4.14. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total disability rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. § 4.16). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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) (2009). 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. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disability at issue. The Board observes the Veteran is retired, and has not required prolonged hospitalization for his service-connected disability during the pendency of this appeal. Additionally, no examiner has stated the Veteran's service-connected disability alone is the cause of any marked interference with employment. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of the service-connected disability. See 38 U.S.C.A. § 1155 (Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity). For these reasons, referral for extraschedular consideration is not warranted. In conclusion, the preponderance of the evidence is against a disability rating in excess of 10 percent prior to October 23, 2008, and in excess of 40 percent thereafter, for the Veteran's residuals of a head injury. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for a cognitive disorder is granted. The appeal as to the issues of service connection for hypertension and for a visual acuity disorder is dismissed. Entitlement to a disability rating in excess of 10 percent prior to October 23, 2008, for residuals of a head injury is denied. Entitlement to a disability rating in excess of 10 percent effective October 23, 2008, for residuals of a head injury is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs