Citation Nr: 1300732	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  09-23 081A	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania



THE ISSUE

Entitlement to an initial rating in excess of 10 percent for the service-connected residuals of concussive syndrome.



ATTORNEY FOR THE BOARD

G. E. Wilkerson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from April 1986 to April 1990 and from June 2004 to November 2005, and had additional service with the National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the RO.

In December 2011, the Board remanded the issue on appeal for additional development of the record.

After completing the requested development, the RO has returned the case to the Board for the purpose of appellate disposition.  

A review of the Veteran's Virtual VA electronic claims file reveals no additional records.  



FINDINGS OF FACT

1.  The Veteran is not shown to suffer from  multi-infarct dementia or related acquired psychiatric disease.

2.  The service-connected residuals of concussive syndrome are shown to include complaints of mild headaches, hearing loss, tinnitus, dizziness, paresthesias of the upper extremity; more than a mild subjective cognitive or emotional/behavioral deficit equating to level 1 traumatic brain injury impairment is not demonstrated.



CONCLUSION OF LAW

The criteria for the assignment of a rating in excess of 10 percent for the service-connected residuals of concussive syndrome have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, 4.127 including Diagnostic Codes 8045 (in effect prior to September 23, 2008), 9304; 38 C.F.R. §§ 3.321, 4.124 including Diagnostic Code 8045 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA) 

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The RO provided VCAA notice letters to the Veteran in August 2007 and July 2008.  The letters notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  

The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO.  The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the August 2007 letter.

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied.  All available service treatment records were obtained.  

The VA treatment records dated from 2006 to 2012 are associated with the claims folder.  The Veteran has not indicated that he had any other additional information or evidence to submit in support of his claim.  

The Veteran underwent VA examinations in 2008, 2011 and 2012 to determine the nature and severity of his residuals of concussive syndrome.  

Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).


General Rating Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7.  

When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  Schafrath, 1 Vet. App. at 594.  

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  

The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection.  See Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  

The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  


Analysis

Historically, the RO granted service connection for the residuals of concussive syndrome in a February 2008 rating decision.  A 10 percent rating was assigned pursuant to 38 C.F.R. § 4.124a including Diagnostic Code 8045 (residuals of traumatic brain injury), effective on August 3, 2007.  

The protocol for traumatic brain injuries (TBI) was revised during the pendency of this appeal, see 73 Fed. Reg. 54693 (Sept. 23, 2008), and the effective date for these revisions is October 23, 2008.  See 38 C.F.R. § 4.124, Note (5).  That note also states that a veteran may request review under the new regulations, and a rating under the revised criteria will not have an effective date prior to October 23, 2008.

The rating criteria in effect prior to October 23, 2008 state that, for brain disease due to trauma, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207).  

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 multi-infarct dementia association with brain trauma.

Revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation.  Id. 

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.  VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified."

Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction.  Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified."  However, VA is to 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 a Traumatic Brain Injury Not Otherwise Classified" table.

VA is to evaluate emotional/behavioral dysfunction 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, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified."

VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions.

The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI.  For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045 here that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code.  Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition.  The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.

Diagnostic Code 8045 instructs that VA should 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. 

The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury 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.  A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets.  If no facet is evaluated as "total," the overall percentage evaluation is assigned 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet.

The current version of Diagnostic Code 8045 contains the following notes:

Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of a Traumatic Brain Injury 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" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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 a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a , diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his 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 CFR § 3.114 , if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008).

The evidence includes an October 2006 VA outpatient treatment report reflecting that the Veteran had undergone facial reconstruction after a fall down a set of steps while stationed in Germany during service.  At the time of examination, he was working full time.  He denied having headaches, dizziness, masses or seizures.  He also denied having visual changes or field defects, vertigo, nose bleeds or sinus disease, dental disease, stiff neck or masses, shortness of breath, cough, or sputum procution, chest pain, abdominal pain, any genitourinary condition, skin lesions, or joint pain.  

The Veteran also specifically denied any neurological condition, including weakness, seizures, memory changes, depression, anxiety, or posttraumatic stress disorder.  On neurological examination, cranial nerves II though XII were grossly intact.  Romberg was normal and his gait was steady.  

A March 2007 VA outpatient treatment report reflects that the Veteran reported having tinnitus and a mild hearing loss which he attributed to his TBI.  He denied having vertigo, syncopal episodes, chest pain or pressure, shortness of breath, dyspnea on exertion, heartburn, abdominal pain, nausea, or vomiting. 

In connection with VA treatment in May 2007, a neurological examination yielded normal findings.  A motor and sensory examination was normal.  The examiner indicated that there were no significant neurologic abnormalities.   

On VA examination in February 2008, the Veteran reported a history of a head injury in May 1988 when he fell down a flight a stairs and lost consciousness.  

The examiner indicated that the Veteran presumably had at least several hours of amnesia.  He subsequently underwent facial reconstruction surgery.  He reported experiencing ringing in the left ear since the accident and being slightly less attentive than before.  He did not have chronic headaches, syncope, lightheadedness, or loss of consciousness.  The examiner indicated that the Veteran scored a 29 out of 30 on a St. Louis University Mental Status (SLUMS) examination, which was noted to be normal.  

On neurological examination, cranial nerves II to XII were normal; specifically, there was intact facial strength and sensation on the right, although there was mild facial distortion with a slight wider palpebral fissure on the right owing to direct damage to the right face.  

The deep tendon reflexes were noted to be 2+ and equal in the upper and lower extremities.  Plantar responses were flexor.  Pinprick, light touch, proprioception, and vibration were all intact.  Gait was normal, and strength was 5 out of 5.  The examiner's impression was that the Veteran had a significant concussion in service with a significant posttraumatic amnesic period leaving him with tinnitus in the left ear and a slight difficulty with concentration.  The examiner opined that these symptoms were as likely as not caused by the head injury in service.  

On VA examination in July 2008, the Veteran reported working as a corrections officer and being assigned to work in the guard tower, so as to keep him away from other people because of his argumentativeness and short fuse.  He could not describe any episodes of truly impaired judgment, for example disinhibited conversations with his supervisor or violence toward his wife or children.  He did think that, since the head injury, he was more liable to argue and was more emotional and impatient.  He described his personality as fairly structured and rigid.  

On formal screening and mental status testing, the SLUMS score again was 29.  He denied having headaches, seizures, dizziness or lightheadedness except when moving rapidly.  A neurological examination was normal, although there was a slightly widened palpebral fissure on the right, probably related to old maxillofacial trauma.  Otherwise, cranial nerves II through XII were normal.  His strength and deep tendon reflects were normal.  Plantar response was flexor, and a sensory examination was intact.  

The VA examiner diagnosed traumatic brain injury and noted that it was unclear whether the Veteran psychiatric symptoms were related to his underlying personality or to the head injury.  He was referred for formal neuropsychological testing and a CT brain scan.

In August 2008, the Veteran underwent neuropsychological testing.  He presented appropriately groomed and dressed, with a mildly to moderately irritable mood with a mildly to moderately constricted affect.  He criticized the government during testing, as well as the tests that were administered to him.  

The Veteran discussed the in-service TBI and reported that he had experienced short term memory difficulties since the injury.  The examiner noted that the Veteran underwent CT scan of the brain, which revealed encephalomalcia involving the lateral aspect of the right temporal lobe consistent with a prior insult.  No acute process was identified.   He was alert and cooperative and oriented in all spheres.  Insight and judgment were fair.  Attention, confidence level, effort, and motivation were good.  There was no evidence of psychiatric interference.  

After the administration of a few neuropsychological tests, the examiner indicated that the Veteran's overall cognitive abilities were in the average range.  On the Working Memory Index, he performed in the very superior range.  In sum, his working memory abilities were much better developed than his abilities to process visual information quickly, his nonverbal reasoning abilities, and his verbal comprehension skills.  His immediate memory performance and delayed memory performance were in the average range, which the examiner found to be commensurate with his overall intellectual functioning.  

The examiner also noted that the Veteran did not meet the criteria for a diagnosis of posttraumatic stress disorder.  He reported use of alcohol that the examiner noted might require further assessment and clinical intervention because it might be mixed with residual war difficulties.  

The examiner noted that persons with similar personality test profiles had a history of drinking problems and tended to have considerable problems with temper and aggressive behavior.  In addition, the examiner noted that diagnostic considerations would include alcohol dependence, but other personality structures might be exacerbated and confounded by his attempts to solve difficulties with behavioral outburst and/or substance use.  

A September 2008 VA TBI consultation report reflects that the Veteran presented for the evaluation adequately groomed, alert and oriented, and with good eye contact and appropriate speech and affect.  The examiners used the following scoring system for the evaluation of symptoms related to the TBI:  0- none, 1- mild, 2- moderate, 3- severe, and 4- very severe.  

With respect to neurobehavioral symptoms, the Veteran reported a 2 for dizziness and indicated that he experienced dizziness first thing in the morning and with heat and strenuous activity.  He did not indicate vertigo symptoms, though he had some light-headedness.  A score of 1 was indicated for loss of balance, headaches, and sensitivity to light, while a score of 0 was assigned for poor coordination, vision problems, and nausea.  A 3 was assigned for hearing difficulty given his tinnitus and left ear hearing loss.  The Veteran also indicated some left upper extremity numbness and tingling since his return from Iraq, and a score of 2 was assigned for numbness or tingling of body parts.  A score of 0 was assigned for change in taste or smell, loss or increase in appetite, and difficulty making decisions, while a 1 was assigned for poor concentration.  

A score of 2 was indicated for forgetfulness as well as slowed thinking, difficulty getting organized and inability to finish tests.  The Veteran reported that he was forgetful when he had many things on his mind and had to use lists and notes as reminders.   A score of 0 was noted for fatigue, loss of energy, getting tired easily, difficulty falling or staying asleep, and feeling depressed or sad, while a score of 1 was noted for his feeling anxious or tense.   A score of 3 was assigned for irritability as well as poor frustration tolerance and feeling easily overwhelmed by things.  He noted that he got easily upset when not running on schedule.  He indicated that he raised his voice and yelled when he was angry.

The Veteran reported that these symptoms severely impacted his home life and relationships, primarily due to his irritability.  With respect to alcohol use, the Veteran reported drinking approximately 1 case of beer a week, usually 3 to 4 in one day and 10 drinks during a maximum sitting.  There were no significant findings on physical examination.  

In conclusion, the examiner noted that there were psychiatric symptoms present related to an alcohol abuse/dependence disorder.   He noted that the findings were consistent with a diagnosis of TBI.

A March 2009 VA TBI evaluation report includes another evaluation of neurobehavioral symptoms using the same scale as noted hereinabove.  Scores of 1 were reported for dizziness, loss of balance, hearing difficulties, numbness or tingling, forgetfulness, and fatigue.  A score of 0 was assigned for poor coordination, headaches, nausea, vision problems, sensitivity to light or noise, change in taste or smell, loss or increase in appetite, poor concentration, difficulty making decisions, slowed thinking, anxiety, depression, and difficulty falling or staying asleep.  A score of 2 was noted for irritability.  

The Veteran reported that he was very routine-oriented and stated that he became frustrated if his routine changed.  He denied any problems due to this and declined psychological, psychiatric, or group treatment for these problems.  The Veteran denied any concerns or functional difficulties with any of the above symptoms.  

On VA examination in January 2011, the Veteran denied a history of a seizure disorder or headaches.  The examiner also noted that there was no history of vertigo, balance or coordination problems, mobility problems, sleep disturbances, fatigue, malaise, psychiatric symptoms, memory impairment, cognitive symptoms, neurobehavioral change, bowel or bladder problems, hypersensitivity to light or sound, vision problems, speech or swallowing difficulty, or cranial nerve dysfunction.   The Veteran continued to work full time as a corrections officer with no apparent effects on activities of daily living.  

On physical examination, a detailed reflex, sensory, and motor examination yielded normal findings.  There were no physical findings of an autonomic nervous system impairment, gait abnormalities, imbalances or tremors, muscle atrophy or loss of muscle tone, spasticity or rigidity, fasciculation, cranial nerve dysfunction, hearing problems, endocrine dysfunction, skin breakdown, vision problems, psychiatric manifestations or other abnormalities.  

On cognitive examination, the Veteran's memory, attention, concentration, and executive functions were noted to be normal with no complaints of impairment.  Judgment was normal and social interaction was routinely appropriate.  He was oriented to person, time, place and situation.  Motor activity and visual spatial orientation were normal.  There were no neurobehavioral effects that interfered with workplace interaction or social interaction.  

A diagnosis of TBI was assigned.  The examiner indicated that the Veteran was currently stable without apparent sequelae, residuals, or effects on his ability to secure and maintain gainful employment or impact on activities on daily living.  

A VA outpatient treatment report dated in July 2011 reflects that he Veteran again denied having lightheadedness, dizziness, headaches, chest pain, chest pressure, palpitation, dyspnea, orthopnea, syncope, abdomen, or change or problems with bowel or urine.  

A VA neurology department note dated in January 2012 reflects the onset of TBI in May 1988 when the Veteran fell down stairs fracturing the right zygoma and striking the head.  He experienced a concussion with loss of consciousness.  Sequelae including ringing in the ears with documented hearing loss, mild inattentiveness which did not prevent full time employment or interfere with family life, and mild disinhibition which did not interfere socially or with employment.

On neurological examination, the Veteran's speech and gait were both noted to be normal.  Strength was normal in all extremities.  Deep tendon reflects were also normal.  There was no weakness in any extremity. With respect to mental health manifestations of the TBI, the examiner noted that the Veteran discussed mild disinhibition in that he flew off the handle more easily than before the injury as well as mild inattention.  

The examiner concluded by indicating that the Veteran had a documented history of head injury with right zygoma fracture.  She noted that the sequelae had not interfered with his ability to marry and raise a family or to work full time.  Four years after the injury, he was able to complete a degree in aviation mechanics.  As such, she found his sequelae to be mild.    

The Veteran was afforded a VA TBI examination in July 2012.  The examiner indicated that the onset of TBI residuals occurred when the Veteran fell down a set of stairs in service in 1988 and  reported of having a loss of consciousness for several hours and amnesia for four days.  He indicated that his residual symptoms included loss of balance, dizziness, headaches, sensitivity to light, hearing difficulty, poor concentration, attention difficulties, forgetfulness, slowed thinking, difficulty getting organized, inability to finish tasks, feeling anxious or tense, irritability, poor frustration tolerance, and feeling easily overwhelmed by things.  

The examiner then proceeded to go through the 10 facets of TBI-related cognitive impairment and provide an answer as to the Veteran's current functional status.  With respect to memory, attention, concentration, and executive functioning, the examiner noted that there was a complaint of mild memory loss, or attention, concentration, or executive loss, but there was no objective evidence on testing.  His judgment was noted to be normal.  The third facet-social interaction-was noted to be routinely appropriate.  With respect orientation, the Veteran was always oriented to person, time, place and situation.  

The fifth and sixth facets-motor activity and visual spatial orientation-were both normal.  With respect to subjective symptoms, the examiner indicated that there were three or more subjective symptoms that mildly interfered with work, activities of daily living, or work or family relationships.  

As regards the eight facet, neurobehavioral effects, the examiner indicated that there was one or more neurobehavioral effects that occasionally interfered with workplace or social interaction or both, but did not preclude them.  

The ninth facet-communication-was noted to be normal as the Veteran was able to communicate by spoken and written language and comprehend both as well.  The final facet-consciousness-was also noted to be normal.  

With respect to subjective symptom of any mental, physical, or neurological conditions or residuals attributable to a TBI, the Veteran endorsed having sensory dysfunction, hearing loss, altered gait, headaches, dizziness and a mental disorder.  

The examiner indicated that these residuals conditions had an impact on work and daily activities.  In so finding, the examiner noted that subjective symptoms such as dizziness, headaches, poor concentration, and memory impairment would have a mild effect on family and other close relationships.  In addition, he determined that the neurobehavioral effects would have an effect on occupational activities.  

The July 2012 examination report contains specific evaluations of the Veteran's claimed symptoms, including ear conditions, headaches, and peripheral nerve conditions.  The separate ear evaluation reflected that the Veteran complained of tinnitus and hearing loss, as well as imbalance and dizziness.  However, a physical examination revealed normal findings with respect to the Veteran's vestibular system and gait.  No other diagnosis was assigned outside of the Veteran's complaints of imbalance and dizziness.   

The headaches evaluation report reflected that the Veteran had difficulties with headache pain.  He indicated that the headaches occurred for a duration of less than 1 day at a time and were not characteristic prostrating attacks of migraine headache pain.  The examiner added that, while the Veteran had scarring related to the TBI, the scars were not unstable or painful.  The examiner determined that these headaches did not impact his ability to work.  

On the separate peripheral nerves examination, the Veteran reported having mild paresthesia of the left upper extremity.  Muscle strength testing of all extremities was normal.  Reflex and sensory examinations were also normal.  The examiner determined that all nerves associated with the upper and lower extremities were normal with no evidence of incomplete or complete paralysis.  

As regards the criteria in effect prior to October 23, 2008, as noted, purely subjective complaints  recognized as symptomatic of brain trauma, would be rated 10 percent and no more under Diagnostic Code 9304.  The 10 percent rating cannot be combined with any other rating for a disability due to brain trauma, and ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of multi-infarct dementia association with brain trauma.  There is no evidence that the Veteran has been diagnosed with multi-infarct dementia.  Consequently, the Veteran would not have been entitled to a rating in excess of 10 percent under Diagnostic Code 9304.

As regards the revised criteria for TBI in effect since October 23, 2008, the rating criteria provide that the disability is to be evaluated in each area of dysfunction, including cognitive, emotional/behavioral and physical.  First, with respect to the Veteran's physical complaints, including motor dysfunction, visual impairment, hearing loss, loss of sense of smell and taste, seizures and balance problems, speech and communication problems, or bowel or bladder problems, Diagnostic Code 8045 provides that each are to be evaluated under an appropriate diagnostic code. 

In this case, the Veteran's physical complaints include those of hearing impairment, dizziness, headaches and some weakness in the upper extremities.  He has already been assigned separate ratings for tinnitus and hearing loss; therefore, these physical complaints need not been discussed here.  

The Board notes that the Veteran has also has subjective complaints of parethesias in the left upper extremity and balance problems; however, testing on neurological examination has yielded no objective findings pertinent to either of these complaints.  In particular, motor, sensory, and reflex examinations have yielded normal findings, and there has been no indication of a vestibular disorder.  As such, the Board finds not basis to evaluate these physical complaints.

With respect to the Veteran's complaints of headaches, under that Diagnostic Code 8100 for evaluating migraine headaches, a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  

In this case, the evidence of record preponderates against assigning a rating in excess of 10 percent under this code.  Although the Veteran complains of frequent headaches, he has not met the criteria for a 30 percent rating.  The applicable rating criteria link ratings for migraine headaches to the following two elements: severity and frequency.  It is not sufficient to demonstrate the existence of a particular frequency of headaches; the headaches must be of a specific prostrating character.  The medical evidence does not indicate that the Veteran's headache episodes are prostrating, and the Veteran has not been diagnosed with prostrating headaches during any VA examination.  

Because the evidence shows that the intensity of the Veteran's headaches does not to rise to the level of prostrating migraines, a rating in excess of 10 percent under Code 8100 is not warranted.

As regards the Veteran's emotional/behavioral dysfunction, the record reflects that the Veteran has reported a number of emotional/behavioral symptoms included irritability, forgetfulness and lack of attentiveness.   Diagnostic Code 8045 provides that these symptom are to be rated under 38 C.F.R. § 4.130, Schedule of Ratings-mental disorders, when there is a diagnosis of a mental disorder.  

In this case, however, the Veteran has not been diagnosed with any psychiatric or mental disorder related to his TBI.  While alcohol dependence had been noted, there is no indication in the record that this is related to the Veteran's TBI.  As such, Diagnostic Code 8045 provides that when there is no diagnosis, these symptoms are to be evaluated under the criteria in the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."  

Given that cognitive impairment is also to be rated under this table, the Board will proceed with an evaluation of the Veteran's cognitive and emotional/behavioral symptoms under these criteria.

The July 2012 VA examination provided responses correlating to the ten facets of cognitive impairment and other residuals of TBI not otherwise classified.    Under this table, each facet is given a number based upon level of impairment from 0 to 3, and a fifth level for total impairment.  A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets.  If no facet is "total," then the overall percentage evaluation is based on the highest facet.  

A 70 percent evaluation is assigned if "3" is the highest level of evaluation for any facet.  If the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent.  A 10 percent evaluation is warranted when the highest level of evaluation for any facet is "1."  Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is "0."

Based on the findings of the July 2012 examination, a 1 is assigned for the first facet-memory, attention, concentration, and executive functions.  Given that judgment was noted to be normal, social interaction was routinely appropriate, and orientation normal, a 0 is assigned for each of these facets.  A score of 0 is also assigned for the facets of motor activity and visual spatial orientation, given that findings on the examination were both normal.  

As for the Veteran's subjective symptoms, a level of 1 is assigned given when the Veteran had three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family or other close relationships.  A 1 is assigned for the facet neurobehavioral effects, given that there was one or more effect that occasionally interfered with workplace or social interaction.  Given that the Veteran's ability to communicate was normal and his state of consciousness was normal, a 0 is assigned for each of these two facets.  

As the highest level of impairment shown is "1," a single rating of 10 percent for the service-connected residuals of concussive syndrome is warranted under the revised criteria of Diagnostic Code 8045.

For all the foregoing reasons, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran's service-connected residuals of concussive syndrome.

The above determinations are based upon application of the pertinent provisions of VA's rating schedule.  The Board finds that the record does not reflect that the service-connected residuals of concussive syndrome are exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis.  See 38 C.F.R. § 3.321(b)(1).  

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).

In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  

If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  

Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).   

The Board finds that the rating criteria used to evaluate the service-connected residuals of concussive syndrome reasonably describe his disability level and symptomatology.  

There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability.  

Moreover, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  

Therefore, the Veteran's disability picture is contemplated by the rating schedule 
and no extraschedular referral is required.  38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  
 
Finally, the Board considered the doctrine of reasonable doubt, however, as the 
preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.  



ORDER

An increased, initial rating in excess of 10 percent for the service-connected residuals of concussive syndrome is denied.




____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge 
Board of Veterans' Appeals



Department of Veterans Affairs