Citation Nr: 1304401 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-27 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an evaluation in excess of 10 percent disabling for residuals of traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to May 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2012, the Veteran testified via videoconference at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In the instant decision, the Board grants the Veteran's appeal with regard to disability due to residuals of his in-service TBI. It is noted that the rating in place when he filed his claim was a 10 percent rating under a Diagnostic Code designation of 5099-8045, and was for "RESIDUALS OF TRAUMATIC BRAIN INJURY (TBI), HISTORY OF HEADACHES AND DEPRESSED FRACTURE OF RIGHT ZYGOMA." Essentially, the instant Board decision separates, for rating purposes, residuals of his in-service TBI from residuals of the right zygoma fracture. The issue of the proper rating for residuals of the right zygoma fracture is not before the Board and the Board has no jurisdiction over that issue. So as to ensure that the Veteran is evaluated for residuals of depressed fracture of the right zygoma, and given that there is evidence from VA examination reports that he has pain and numbness in the area of that fracture - disability not compensated for by the Board's decision, the issue of the proper rating for residuals of depressed fracture of the right zygoma is referred to the RO for appropriate action. FINDINGS OF FACT 1. Residuals of the Veteran's in-service TBI include complete loss of sense of smell. 2. Residuals of the Veteran's in-service TBI include complete loss of sense of taste. 3. Residuals of the Veteran's in-service TBI include tinnitus. 4. Residuals of the Veteran's in-service TBI include headaches with characteristic prostrating attacks occurring more than an average of one in 2 months but the headaches do not result in completely prostrating and prolonged attacks; phonophobia and photophobia are associated with the headaches. 5. Residuals of the Veteran's in-service TBI include dizziness with balance problems resulting in occasional staggering. 6. Residuals of the Veteran's in-service TBI do not include severe impairment of executive function resulting in moderate or greater functional impairment and shown by objective evidence, do include no more than occasional disorientation with regard to only time and place, daily fatigue that does not interfere with work, instrumental activities of daily living; or work, family, or other close relationships; the Veteran has normal judgment, normal visual spatial orientation, normal motor activity, routinely appropriate social interaction, the ability to communicate by spoken and written language and comprehend spoken and written language, no persistently altered state of consciousness such as a coma or vegetative state, no neurobehavioral effect that interferes with workplace or social interaction, and no other subjective symptoms residual of in-service TBI for which compensation is not assigned. 7. Insomnia, deficits in memory, attention, concentration, and mood disturbances, are compensated for by the disability rating assigned for the Veteran's posttraumatic stress disorder (PTSD) under the General Rating Formula for Mental Disorders. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for complete loss of sense of smell, residual of in-service TBI, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.87a, Diagnostic Code 6275, 4.124a, Diagnostic Code 8045 (2012). 2. The criteria for a 10 percent disability rating for complete loss of sense of taste, residual of in-service TBI, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.87a, Diagnostic Code 6276, 4.124a, Diagnostic Code 8045 (2012). 3. The criteria for a 10 percent disability rating for tinnitus, residual of in-service TBI, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.87, Diagnostic Code 6260, 4.124a, Diagnostic Code 8045 (2012 4. The criteria for a 30 percent disability rating, but no higher, have been met for headaches residual of in-service TBI. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8045, 8100 (2012). 5. The criteria for a 30 percent disability rating, but no higher, have been met for dizziness residual of in-service TBI. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, .1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.87 Diagnostic Code 6204, 4.124a, Diagnostic Code 8045 (2012). 6. The criteria for a 40 percent disability rating, but no higher, have been met for residuals of TBI not otherwise compensated for by ratings specifically assigned under other diagnoses. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.124a, Diagnostic Code 8045 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2009, the RO sent a letter to the Veteran informing him that the criteria for rating disability due to TBI had been revised and that he was eligible to have his disability evaluated under the revised criteria without asserting that his disability had increased in severity. Following receipt of his claim after that letter was sent, the RO sent a letter to the Veteran in April 2009 informing him as to the evidence relevant to assigning an evaluation, and informing him of his and VA's respective duties in obtaining evidence. That letter also informed him as to how effective dates are assigned if there is a change in the rating. The Board finds that this letter provided adequate notice. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and records from the Veteran's claim of entitlement to disability benefits from the Social Security Administration (SSA). The Veteran has not identified other treatment records relevant to his claim. VA afforded the Veteran adequate examinations in May 2009, March 2010, December 2010, and July 2011. The May 2009 examination did not include review of medical records but the history of the disability provided by the examiner in that report is adequate. The March 2010, December 2010, and July 2011 examinations did include review of the Veteran's claims file. In all instances, the examiner's provided a detailed description of the Veteran's medical and psychiatric symptoms, included information obtained from interview with the Veteran as well as physical examination of the Veteran, and provided adequate explanations as to the conclusions reached, when appropriate. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to the issue on appeal, has been met. 38 C.F.R. § 3.159(c)(4) As indicated above, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the June 2012 hearing, the undersigned Veterans Law Judge identified the single issue on appeal. Also, the Veteran's representative elicited detailed information as to the symptoms suffered by the Veteran. VA has afforded several comprehensive examinations in this case. There is no indication that there is insufficient evidence to assign ratings residuals of the Veteran's in-service TBI or that there is any existing relevant evidence not associated with the claims file. It is clear from the hearing transcript that the Veteran testified as to all symptoms that he believes or that it is reasonable to believe could be residuals of his in-service TBI. This is not a case where it could be said that evidence regarding a specific aspect is deficient. Based on these facts, the Board finds that there has been compliance with the Court's holding requiring that the issue be "explained . . . in terms of the scope of the claim for benefits," and that any "outstanding issues material to substantiating the claim" are fully explained. See Bryant, 23 Vet. App. at 497. Significantly, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Disability Evaluation As noted above, the Veteran filed his claim in March 2009 in response to the letter that the RO sent to him earlier that month informing him that he could request reevaluation of residuals of his in-service TBI under the newly revised criteria. Effective October 23, 2008, VA revised that portion of the Rating Schedule that addresses neurological conditions and affective disorders to provide detailed and updated criteria for evaluating residuals of TBI. See 73 Fed. Reg. 54693 (September 23, 2008). The revised criteria apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whose residuals of TBI were rated by VA under the prior version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA received additional evidence. The effective date of any increase in disability compensation based solely on the new criteria can be no earlier than October 23, 2008, but otherwise will be assigned under the current regulations governing effective dates. Id. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Providing separate ratings under different diagnoses for the same manifestation is referred to as pyramiding and is to be avoided. 38 C.F.R. § 4.14. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As noted below, the revision to 38 C.F.R. § 4.124a Diagnostic Code 8045 includes the direction that VA will apply 38 C.F.R. § 3.114 if applicable. Under that provision, where benefits are awarded or increased pursuant to a liberalizing VA issue approved by the Secretary or at the Secretary's direction, and the claimant requests review of a claim within 1 year of that issue, benefits may be authorized from the effective date of that issue. 38 C.F.R. § 3.114 (2012). Here, the Veteran's claim was received within one year of the revision. The Board has determined that the effective date for the benefits granted in this decision is to be no later than the effective date of the revision of the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board finds that the facts of this case do not lead to staged ratings for any period after that date. The new version of Diagnostic Code 8045 continues to provide for the evaluation of residuals of TBI. 38 C.F.R. § 4.124a (effective October 23, 2008). The criteria are as follows: There are three main areas of dysfunction listed 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. 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." Id. 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 CFR 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The 10 important facets cognitive impairment and other residuals of TBI not otherwise classified are as follows: (1) Memory, attention, concentration, executive functions; (2) Judgment; (3) Social interaction; (4) Orientation; (5) Motor activity; (6) Visual spatial orientation; (7) Subjective symptoms; (8) Neurobehavioral effects; (9) Communication; and (10) Consciousness. Id. As a matter of background, the service treatment records document that on July 19, 1965 the Veteran lost consciousness for 5 minutes after running into a goalpost. He was admitted to the hospital that date. At the time of the admission he was mildly lethargic but oriented times 3. Hospitalization was from July 19 to July 28, 1965. Discharge diagnoses included concussion. The medical professionals who examined him in March 2010 and in July 2011 noted that the Veteran's account of his in-service injury includes that he was unconscious for one month or longer. It is also noted that the July 2011 examiner reported that the Veteran has a strong tendency to exaggerate his symptoms. The Board has considered these facts. It has also considered that that the Veteran has documented memory problems related to his PTSD, a disability rated as 70 percent disabling. Additionally, the Board notes that there is insufficient explanation as to why the examiner determined that the Veteran has a tendency to exaggerate his symptoms that have been present during the course of his current claim and appeal. His description of the in-service injury is not a description of his current symptoms. After considering all of these facts, the Board concludes that the examiner's determination that the Veteran tends to exaggerate his symptoms is not of significant importance in the Board's determination as to the proper rating or ratings to be assigned for residuals of his in-service TBI. VA treatment notes and records obtained from the SSA have been reviewed. SSA records do not mention TBI. Rather, a February 2003 list of reported impairments consists of PTSD, hypertension, sleep disorder, prostate cancer, and arthritis. VA treatment notes do not provide evidence more favorable to the Veteran's claim than that provided for by the examination reports and his testimony. As noted above, VA provided the Veteran with several relevant examinations in this case. During the May 2009 examination, the Veteran reported that he suffered from numbness on the right side of his face and had constant headache, described as dull to aching on the right side without other associated symptoms. He also complained of dizziness, which he described imbalance. He reported that he has cervical spine arthritis and that he has blacked out - the first time in July 2008. He reported that he did not know if this was related to his in-service head trauma or to some other cause. Responding to a TBI checklist of symptoms, he reported insomnia, a recent balance problem, long term fatigue, tinnitus sometimes, and taste and smell problems that he said had recent onset. He described the latter as food not tasting or smelling as good now as it used to. He also reported that he has vision problems but that those are related to a lack of eyeglasses. Following physical examination, the examiner diagnosed chronic daily headache. During the next examination, in March 2010, the Veteran reported that he suffers from headaches most days and at times his headaches are so severe that he has to retire to a darkened room. The examiner listed a Veteran provided description of the headaches and stated that the Veterans headaches most resemble a tension type headache with some features of vascular component, that being a throbbing sensation accompanied by light sensitivity. At this examination the Veteran did not complain of dizziness or vertigo, weakness or paralysis, sleep disturbance, fatigue, or malaise. He reported mobility problems mostly with his knees, and that he did not have balance problems independent of his knee pain. He reported decreased memory, attention, and concentration, and that those are accompanied by executive dysfunction and have occurred in the few years prior to his medical retirement but not back to the time of the head injury. The examiner stated that the Veteran did not describe speech or swallowing difficulties or expressive language disturbance; he reported back and knee pain but not bowel, bladder, or erectile problems. He did not describe numbness, paresthesias, vision or hearing problems, but did report that his taste and smell were abnormal. On examination the Veteran was able to smell oil of wintergreen. The Veteran described his mood symptoms and reported that his cognitive functions were decreasing. He reported no seizures, but reported that he has neurobehavioral symptoms in that he becomes confused and disoriented when driving. He did not report heat intolerance, abnormal sweating, or symptoms suggestive of endocrine or cranial nerve dysfunction. Physical examination revealed some decrease in sensation in the right zygoma area where he had a previous fracture. The examiner stated that the Veteran was socially appropriate, interacted well with the examiner, demonstrated some memory problems and could not spell "world" forward and backward; he demonstrated reasonable judgment but could not discuss similarities and differences very well, had normal motor system and sensory examination, but psychiatric examination revealed anxiety. In a section for assessment of cognitive functions, the examiner stated that the Veteran had early vascular dementia of recent onset, basing this determination on the fact that the Veteran worked effectively after his military discharge and developed cognitive disturbance several years prior to 2003. He was also found to have moderate memory impairment and moderately severe judgment impairment but no objective memory impairment. He occasionally becomes disoriented, primarily to time and place. He reported subjective symptoms of anxiety, headache, memory disturbance, all which moderately interfere with work. The examiner found that the Veteran's communication was acceptable but less than what would be expected of someone with a college degree. Content of his consciousness was found to be impaired. The examiner stated that most of the Veteran's cognitive disturbance is due to a more recent illness and less likely than not related to his in-service TBI. The December 2010 examination, per the report, was requested by the RO to determine what symptoms the Veteran had due to his TBI as opposed to PTSD. This report documents that the Veteran's TBI occurred in 1965, he was discharged from military service in 1985, worked for 1 and 1/2 years as a corrections officer, and then worked as a sports director and coach for 19 years until his retirement. The Veteran reported daily headaches with neurovisual disturbances at times; denied nausea, vomiting, photophobia, or phonophobia. He reported that he has to lie down for 10 minutes when he has the headaches. He reported dizziness or vertigo daily, weakness or paralysis of the legs, sleeping only 3 to 4 hours per night, balance and mobility problems, cognitive deficits including in short term memory and concentration. He reported no problems with attention or executive functions. He reported constant pain in his left knee and shoulders. He denied fatigue, malaise, speech or swallowing problems. He reported bladder incontinence post prostate surgery, and erectile dysfunction. He reported psychiatric problems like PTSD, numbness of his hands and feet, blurred vision in the right eye, decreased sense of taste and smell, and ringing in the ears, but denied seizure disorder, hypersensitivity to sun or light, neurobehavioral problems, autonomic dysfunctions, or cranial nerve problems. Physical examination found him oriented times 4. Hearing acuity was normal. Neurologically, cranial nerves were questionable. There were mild complaints involving memory, attention, concentration, and executive functions, without objective findings. The examiner stated that the Veteran's judgment was normal, social interaction was appropriate, neurobehavioral effects did not interfere with social interactions, he was able to communicate expressively and receptively, and consciousness was normal. The examiner stated that the mental disorder symptoms were attributed to TBI like PTSD and depressive disorder. He underwent another TBI examination in July 2011. Differences in his reports from the earlier examinations were that he had photophobia and phonophobia associated with the headaches, daytime fatigue 3 times per week, and, beginning 3 months earlier, he sometimes staggers due to poor balance. He reported memory, concentration, attention, and executive function problems. Also present at the examination was the Veteran's spouse who informed the Veteran that stutters at times and has swallowing difficulty related to acid reflux. Also noted was that the Veteran has erectile dysfunction present going back to his active service. Neurological examination revealed no deficits other than slight tenderness over the zygomatic area of a service-connected fracture and right maxillary sinuses. The examiner provided three impressions. First that the Veteran's headaches were due to the in-service TBI. Second, that there was no cognitive dysfunction related to the in-service TBI. Third, that the Veteran had a strong tendency to exaggerate his symptoms. Service connection has been established for numerous disabilities suffered by the Veteran and ratings have been assigned for these disabilities. These include impairment of both knees, coronary artery disease, esophageal reflux with chronic gastritis, pterygium and residuals of injury of the right eye, residuals of prostate cancer, erectile dysfunction, PTSD, and residuals of TBI. Consistent with Note (1) under Diagnostic Code 8045, the Board has reviewed the rating decisions and examinations to determine if there are manifestations of his TBI that underlie the rating assigned for another disability. On their face, the erectile dysfunction, joint pain, right eye injury residuals, and swallowing difficulty associated with reflux are already assigned disability ratings and cannot be the basis for additional ratings for residuals of TBI. The Board has reviewed the reports of VA examinations with regard to the Veteran's PTSD going back to when he initially filed for service connection for that condition. Examination in March 2005 referred to memory impairment, concentration and attention impairment, poor sleep, constant angry feelings, and delusional beliefs. That examination also found the Veteran agitated and nervous and that he demonstrated a labile affect. Review of the rating decisions along with this evidence shows that the rating assigned for disability due to PTSD is based on insomnia, memory, concentration, and attention deficits, and mood disturbances (to include anxiety and depression), but not deficits in executive function or judgment. Hence, memory impairment, concentration and attention impairment, poor sleep, mood disturbance, and delusional beliefs cannot support a separate rating for TBI. The rating for PTSD is 70 percent by application General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 (2012) and the Veteran would not benefit from assigning a separate rating for the symptoms resulting from both his PTSD and his in-service TBI under a diagnosis of TBI while not compensating him for those symptoms by the rating for PTSD. This is because, given his reported symptoms, he would not receive a combined higher rating. VA is required to maximize a claimant's benefits. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008)(citing 38 C.F.R. § 3.103(a) (2008) for the rule that VA has an obligation "to render a decision which grants every benefit that can be supported by law"). To that end, the Board has considered the combined evaluation arrived at by rating the residuals of the Veteran's in-service TBI individually under appropriate diagnostic codes and under the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. Also considered by the Board is whether separate ratings should be assigned for his reports of dizziness (imbalance), headaches, and/or tinnitus. Here, the rating criteria refers to separately evaluating any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if the diagnosis is based on subjective symptoms. It also states that VA should evaluate physical dysfunction under an appropriate diagnostic code, to include tinnitus, loss of sense of smell, balance problems, and other residuals, indicates that the preceding list is not exhaustive, and directs VA to evaluate other physical dysfunction under an appropriate diagnostic code. Taking this language as a whole, the Board finds that it is proper to assign ratings for such residuals as headaches and dizziness under an appropriate diagnostic code even if there is not a specific diagnosis of "migraine headaches" or "peripheral vestibular disease," for example. Any other reading of the criteria would result in an arbitrary interpretation potentially prejudicial to the Veteran. Now the Board turns to a discussion of the levels of impairment assigned for the ten facets of cognitive impairment and other residuals of TBI not otherwise classified. Insomnia, memory, attention, concentration, and mood symptoms underlie the rating assigned for PTSD so these cannot be considered for a separate rating for TBI. Additionally, the rating assigned for his PTSD is 70 percent and has been in place since February 2005, a period of time that extends to before when ratings can be assigned based on his date of claim and the effective date of the revision to Diagnostic Code 8045. See 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). That rating contemplates the symptoms and severity of the psychiatric symptoms involving insomnia, memory, concentration, attention, and mood deficits. To the extent that it does not contemplate deficits in executive function, the most probative evidence shows that he had mild complaints without objective findings, leading the Board to assign a level of disability of "1" for these symptoms that have been shown in the evidence already discussed. The preponderance of evidence shows that his social interaction is routinely appropriate, so a level of impairment of "0" is assigned. The evidence does not show deficits in his motor activity or visual spatial orientation, so a disability level of "0" is appropriate in these categories. Neurobiological effects have been described as not interfering in the Veteran's activities and hence are assigned a "0" level of disability. As to communication, although he has been found to have less ability to communicate than would be expected of someone with his level of education (college degree), the preponderance of evidence shows that he is ability to communication by spoken and written language, both as to expression and comprehension. A "0" level of disability is assigned in this regard. There is no evidence of a persistently altered state of consciousness such as coma or a vegetative state, so no level of impairment is assigned for this facet. There are several reports as to the Veteran's judgment. There is no evidence that the rating in place for PTSD was assigned for judgment deficits. March 2010 examination results include inconsistent statements. Under a physical examination section of the report, the examiner stated that the Veteran demonstrated reasonable judgment, but could not discuss similarities and differences very well. In an assessment of cognitive functions section of the report, the examiner stated that he has moderately severely impaired judgment but included no explanation or examples of how his judgment is impaired. The December 2010 examination report includes a finding that his judgment was normal and the July 2011 examination report includes a finding that his cognitive functions were normal. Given the timing of these examinations, the unsupported finding in one section of the March 2010 report and the normal findings in all other cases, including the March 2010 finding in another section of that report of reasonable judgment, the Board concludes that disability in the category of judgment does not rise above level "0." Subjective symptoms include headaches requiring rest periods most days, and fatigability. The May 2009 examination report includes a characterization of dizziness as balance problems and the Veteran has reported these as recently as during the February 2012 Board hearing. The highest level of disability available in the category for subjective symptoms, including fatigue, dizziness, tinnitus, and headaches, is "2" and is appropriate in this case. As to orientation, the most probative evidence shows that he only occasionally becomes disoriented to time and place, thus a level of impairment of "2 " is appropriate in this regard. It is noted that hypersensitivity to sound and light are part of the constellation of symptoms assigned a "1" level of impairment under the subjective symptoms facet. Therefore, this facet contemplates his reported phonophobia and photophobia. Based on the above analysis, the highest level of impairment present for any category of symptoms for rating his TBI based on the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified is level 2. This equates to a 40 percent rating. Application of this table shows that his disability due to residuals of TBI does not approximate the criteria for a higher rating. As is explained in the following paragraphs, separate ratings are warranted for all residuals of his in-service TBI other than fatigue and deficits in executive function, orientation, and judgment. Those separate ratings are of the following percentages: 30, 30 10, 10, and 10. Application of 38 C.F.R. § 4.25 (2012), the regulation that applies to combining ratings to arrive at a single combined rating, to those 5 percentages yields a combined rating well above 40 percent. Hence, it is more beneficial to the Veteran to assign the individual ratings where possible. Also, as explained elsewhere in this decision, the remaining uncompensated residuals of his in-service TBI still warrant a separate 40 percent rating by application of the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. The Board now turns to application of the rating schedule to the residuals of the Veteran's in-service TBI for which individual ratings are warranted. Where there are migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability a 50 percent rating is assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8100. For migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months a 30 percent rating is assigned. Id. For migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months a 10 percent rating is assigned. Id. With less frequent attacks a noncompensable rating is assigned. Id. From the examination reports it is clear that the Veteran has headaches, which are not merely tension headaches, more frequently than once per month. The evidence shows that he has characteristic prostrating attacks given that he reports having to retire to a quiet room for short periods of time to relieve the headaches. Hence, his headaches approximate the criteria for a 30 percent rating. Given that he has reported that these characteristic prostrating attacks are for short periods, periods of 10 minutes as he reported during the December 2010 examination, his headaches do not approximate the criteria for a 50 percent rating because he does not have prolonged prostrating attacks. It is noted that the Veteran reports photophobia and phonophobia associated with the headaches. Disability due to photophobia and phonophobia are therefore compensated for by the 30 percent rating under Diagnostic Code 8100. There is no evidence of hearing loss as residual of his in-service TBI. An evaluation under the criteria for evaluating Meniere's disease found at 38 C.F.R. § 4.87, Diagnostic Code 6205 is therefore inappropriate. However, 38 C.F.R. § 4.87 Diagnostic Code 6204, for peripheral vestibular disorders, is an appropriate diagnostic code for assigning a rating for the dizziness with balance problems residual of his in-service TBI. Under Diagnostic Code 6204, dizziness and occasional staggering is assigned a 30 percent rating while only occasional dizziness is assigned a 10 percent rating. 38 C.F.R. § 4.87, Diagnostic Code 6204. The Board has considered the note under Diagnostic Code 6204 that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under that code. That note precedes the October 2008 revision of Diagnostic Code 8045. Additionally, a note under the criteria for rating Meniere's disease directs the rater to either evaluate Meniere's disease under Diagnostic Code 6205 or separately as dizziness under Diagnostic Code 6204, and hearing loss, and tinnitus, whichever method results in an overall higher rating. Given the direction in that revised Diagnostic Code 8045 to evaluate physical dysfunction residual of TBI under an appropriate diagnostic code, and the specific listing of tinnitus and balance problems in that direction, the Board concludes that, notwithstanding the note under Diagnostic Code 6204, that is an appropriate diagnostic code to evaluate the Veteran's dizziness and associated balance problems. Based on his report of balance problems as including that he sometimes staggers, found in the July 2011 examination report, the Board finds that this residual of his in-service TBI approximates the criteria for a 30 percent rating under Diagnostic Code 6204. Under 38 C.F.R. § 4.87 Diagnostic Code 6260, the only compensable rating available for disability due to tinnitus is 10 percent. Review of the examination reports and the transcript of the hearing before the Board shows that the Veteran suffers from ringing in the ears, or tinnitus, and the only condition associated with his report of tinnitus is his in-service TBI. Hence, a 10 percent rating is warranted for that residual of his in-service TBI. The Veteran has consistently reported deficits in his ability to taste and smell. Specified at 38 C.F.R. § 4.87a, is that a maximum 10 percent rating can be assigned under Diagnostic Code 6275 for complete loss of sense of smell and a maximum 10 percent rating can be assigned under Diagnostic Code 6276 for complete loss of sense of taste. A note under that section states that evaluations will be assigned only if there is an anatomical or pathological basis for such conditions. During the July 2011 examination he reported that he has no taste or smell and during the Board hearing he reported that this has been the case for 5 years. His earlier description that food does not taste and smell as it used to and the finding that he could smell oil of wintergreen has been considered. Weighing all of these facts, the Board is left with reasonable doubt as to whether he has had complete loss of taste and smell. Resolving reasonable doubt in his favor, the Board concludes that separate ratings are warranted for each of these residuals of his in-service TBI. As to the pathological basis for the conditions, the Board finds that his service-connected TBI - which reasonably could have damaged the areas in the brain responsible for the senses of taste and smell - satisfies the pathological requirement. It is noted that although the Veteran has daily fatigue, there is no diagnosis of chronic fatigue syndrome and that the criteria for a diagnosis of chronic fatigue syndrome are specific and includes the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce symptoms similar to chronic fatigue syndrome. See 38 C.F.R. § 4.88a (2012). As the Veteran's fatigue is here considered a residual of his in-service TBI, a rating based on chronic fatigue syndrome is not warranted. Now, the Board considers whether there are residuals of the Veteran's in-service TBI not compensated for by the determinations just discussed and the ratings already in place for symptoms shared with other service-connected conditions. Remaining residuals are fatigue and deficits in executive function, orientation, and judgment. Turning back to the analysis of the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified, the highest level of impairment is "2" - for orientation deficits. This equates to a 40 percent rating. Indeed, this is the same rating that would have been assigned without assigning individual ratings under separate diagnostic codes. Regardless, under the revised criteria that rating is warranted. As there is no remaining facet assigned a level of impairment of "3" or higher, disability due to cognitive impairment and other residuals of the Veteran's in-service TBI not otherwise classified and compensated for does not approximate a rating higher than 40 percent. The Board has not ignored the direction under Diagnostic Code 8045 to consider whether special monthly compensation (SMC) is warranted. It is noted that SMC under 38 U.S.C.A. § 1114(k) for loss of use of a creative organ has been in place since 1999 and SMC under 38 U.S.C.A. § 1114(s) was in place from July 17, 2007 to September 1, 2008 and from October 27, 2010 to January 1, 2011. The treatment records and examination reports relevant to the current claim and appeal show that the Veteran is not in need of regular aid and attendance of another person, and is not housebound. Evidence in this regard is found in the report of a March 2011 examination with regard to his PTSD. That report documents that the Veteran enjoyed playing basketball, is somewhat limited in this regard by his pacemaker, but referees basketball and attends church, is able to drive, manage his finances, and perform basic cleaning and cooking tasks. There is no total rating in place for any period on appeal for which SMC under 38 U.S.C.A. § 1114(s) is not in place and the Board here does not grant a separate total rating. There is no evidence showing that he is unable to secure and follow a substantially gainful occupation due to residuals of his in-service TBI. That March 2011 examination report includes in an occupational history that the Veteran voluntarily stopped working without attendance or performance problems and has some difficulty being around others and completing job related tasks in a reliable and efficient manner due to his mental health. This is evidence against a finding that he is unable to secure and follow a substantially gainful occupation due to residuals of his in-service TBI and therefore evidence against assigning a total rating due to individual unemployability due to residuals of his in-service TBI for any period of time on appeal. Hence, the preponderance of evidence is against assigning SMC under 38 U.S.C.A. § 1114(s) for any period on appeal for which it is not already in place. Review of the criteria for SMC and consideration of the revision of Diagnostic Code 8045, leads the Board to the conclusion that the preponderance of evidence is against granting SMC under any subsection of 38 U.S.C.A. § 1114 (West 2002 & Supp. 2012), as implemented by 38 C.F.R. § 3.350 (2012) for any period of time on appeal. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station 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) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must 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. Id. 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. Here, all of the Veteran's reported symptoms and level of disability resulting from his in-service TBI are addressed by the schedular criteria. Indeed, the Veteran has reported all symptoms, even those already found to be associated with other service connected conditions including erectile dysfunction and joint pain. As to the remaining symptoms that could be associated with his TBI, such as dizziness, headaches, loss of sense of taste and smell, fatigue, mood disturbances, judgment deficits, memory deficits, those have either been assigned ratings under other specific criteria such as the criteria for evaluating mental illness including PTSD, or are contemplated by the extensive criteria now found at Diagnostic Code 8045. The level of disability suffered by the Veteran is contemplated by those schedular criteria, in both kind and degree. For example 38 C.F.R. § 4.124a, Diagnostic Code 8100 provides for ratings for headaches not only of the severity suffered by the Veteran but for headaches with completely and prolonged prostrating attacks, a degree of disability not suffered by the Veteran. Indeed, the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified, contemplates any remaining symptoms due to residuals of the Veteran's in-service PTSD and allows for a total rating if the severity of symptoms is great enough. For these reasons, the Board finds that the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. In summary, the appeal is granted as to the following: A 10 percent rating is assigned for loss of sense of smell under 38 C.F.R. § 4.87a Diagnostic Code 6275, a 10 percent rating for loss of taste under 38 C.F.R. § 4.87a Diagnostic Code 6276, a 10 percent rating for tinnitus under 38 C.F.R. § 4.87 Diagnostic Code 6260, a 30 percent rating for headaches under 38 C.F.R. § 4.124a Diagnostic Code 8100, a 30 percent rating for dizziness under 38 C.F.R. § 4.87 Diagnostic Code 6204, and a 40 percent rating for other residuals of TBI not otherwise classified, under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Taking all of the Veteran's reports under consideration as to onset of symptoms, the Board cannot find that the preponderance of evidence is against assigning an effective date later than the date of revision of the criteria for evaluating residuals of TBI, October 23, 2008. However, the Board finds that residuals of his in-service TBI do not approximate a higher or additional schedular rating, including SMC or TDIU, or referral for extraschedular consideration for any period of time on appeal and to that extent the appeal is denied; here is no reasonable doubt to be resolved in this regard. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [Continued on Next Page] ORDER A 10 percent disability rating is granted for complete loss of sense of smell as residual of the in-service TBI, effective no later than October 23, 2008, subject to the laws and regulations governing monetary awards. A 10 percent disability rating is granted for complete loss of sense of taste as residual of the in-service TBI, effective no later than October 23, 2008, subject to the laws and regulations governing monetary awards. A 10 percent disability rating is granted for tinnitus as residual of the in-service TBI, effective no later than October 23, 2008, subject to the laws and regulations governing monetary awards. A 30 percent disability rating is granted for headaches as residual of the in-service TBI, effective no later than October 23, 2008, subject to the laws and regulations governing monetary awards. A 30 percent disability rating is granted for dizziness as residual of the in-service TBI, effective no later than October 23, 2008, subject to the laws and regulations governing monetary awards. A 40 percent disability rating is granted for evaluation of cognitive impairment and other residuals of the in-service TBI not otherwise classified, effective no later than October 23, 2008, subject to the laws and regulations governing monetary awards. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs