Citation Nr: 1313718 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-32 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating greater than 10 percent prior to April 16, 2012, and greater than 70 percent thereafter, for a traumatic brain injury (TBI). 2. Entitlement to service connection for paresthesia of the left upper extremity, to include as due to a service-connected TBI. 3. Entitlement to service connection for paresthesia of the right upper extremity, to include as due to a service-connected TBI. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from March 1964 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted, in pertinent part, the Veteran's claim of service connection for a TBI (which was characterized as traumatic brain injury (also claimed as memory loss)), assigning a 10 percent rating effective April 25, 2008. The RO also denied the Veteran's claims of service connection for paresthesia of the left upper extremity, to include as due to a service-connected TBI (which was characterized as left upper extremity paresthesia (claimed as numbness of arms and hands)), and for paresthesia of the right upper extremity, to include as due to a service-connected TBI (which was characterized as right upper extremity paresthesia (claimed as numbness of arms and hands)). In June 2011 and in March 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In a February 2013 rating decision, the RO assigned a higher initial 70 percent rating effective April 16, 2012, for the Veteran's service-connected TBI. The RO also granted service connection for anxiety disorder (claimed as posttraumatic stress disorder (PTSD)), assigning a 50 percent rating effective August 25, 2008. Because the initial ratings assigned to the Veteran's service-connected TBI are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for bilateral hearing loss and for tinnitus have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board previously referred these claims to the AOJ (in this case, the RO) in its March 2012 remand. To date, however, the RO has not taken any action on either of these claims. Therefore, the Board does not have jurisdiction over either of these claims and they are referred again to the AOJ for appropriate action. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has asserted that he is not employable by reason of his service-connected disabilities. The record evidence also indicates that the Veteran currently meets the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2012). In light of Rice, and because the Board is prohibited from granting a TDIU in the first instance, the Veteran's TDIU claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In addition to the Veteran's TDIU claim, the issues of entitlement to service connection for paresthesia of the left upper extremity and for paresthesia of the right upper extremity, each to include as due to a service-connected TBI, are addressed in the REMAND portion of the decision below and are REMANDED to the RO/AMC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The record evidence shows that, prior to April 16, 2012, the Veteran's service-connected TBI was manifested by, at worst, mild impairment in the facets of cognitive impairment and other residuals of a TBI due to such symptoms as memory loss, mildly impaired judgment, and occasionally inappropriate social interaction; there is no record evidence of multi-infarct dementia with brain trauma. 2. The record evidence shows that, since April 16, 2012, the Veteran's service-connected TBI has been manifested by, at worst, moderately severe impairment in the facets of cognitive impairment and other residuals of a TBI due to such symptoms as moderate impairment of memory, attention, concentration or executive functions; there is no record evidence of total disability in any of the facets of cognitive impairment and other residuals of a TBI. CONCLUSION OF LAW The criteria for an initial rating greater than 10 percent prior to April 16, 2012, and greater than 70 percent thereafter, for TBI have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Codes (DCs) 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, DC 8045 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's higher initial rating claim for a TBI is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In September 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete this claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the September 2008 VCAA notice letter was issued prior to the currently appealed rating decision issued in June 2009; thus, this notice was timely. Because the Veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the notices provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board is aware of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) in which the Court held that, for an increased-compensation claim, section § 5103(a) requires, at a minimum, VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Relying on the informal guidance from VA's Office of General Counsel (OGC) and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that Vazquez-Flores is not applicable. According to OGC, because this claim concerns an appeal from an initial rating decision, VCAA notice obligations are satisfied fully once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely NOD with respect to the initial rating or effective date assigned following the grant of service connection. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file also has been reviewed. The Veteran further does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issues as including entitlement to an increased rating for a TBI. The VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The VLJ specifically asked the Veteran about continuity of the Veteran's TBI symptomatology since active service. Moreover, neither the Veteran nor his current service representative (whom he appointed in March 2012, well after his Board hearing) has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The VLJ asked questions to draw out the evidence which demonstrated worsening of the Veteran's service-connected TBI, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran has been provided with VA examinations which address the current nature and severity of his service-connected TBI. Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Higher Initial Rating for a TBI The Veteran contends that his service-connected TBI is more disabling than currently evaluated. He specifically contends that his TBI is totally disabling and he is entitled to a 100 percent rating as a result. Laws and Regulations In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as in this case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected TBI currently is evaluated as 10 percent effective August 25, 2008, and as 70 percent effective April 16, 2012, under 38 C.F.R. § 4.124a, DC 8045. See 38 C.F.R. §§ 4.124a, DCs 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, DC 8045 (2012). The criteria for evaluating a TBI were 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 also 38 C.F.R. § 4.124a, Note (5). Note (5) to § 4.124a 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 provide 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 DC 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 are not assignable in the absence of multi-infarct dementia associated with brain trauma. 38 C.F.R. §§ 4.124a, DCs 8045, 9304 (effective prior to October 23, 2008) Revised DC 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. 38 C.F.R. § 4.124a, DC 8045 (2012). 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." The Board notes in this regard that the Veteran has been diagnosed as having anxiety disorder and service connection currently is in effect for this disability, evaluated as 50 percent disabling effective August 25, 2008. Accordingly, evaluation of the Veteran's emotional/behavioral dysfunction due to his service-connected TBI is not required. 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, DC 8045, 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. DC 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." Not every facet has every level of severity, however. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is 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 DC 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 DC 8045. Note (5): A Veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, DC 8045, in effect before October 23, 2008 may request review under DC 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 DC 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, DC 8045 (2012). Factual Background The Veteran's service treatment records show that, at his enlistment physical examination in February 1964, he denied all relevant medical history. Clinical evaluation showed that he was "found to be physically qualified for enlistment." No defects were noted. While on authorized leave visiting his relatives in August 1964, the Veteran was involved in a motor vehicle accident (MVA) when the vehicle he was riding in "lost control while rounding a curve at excessive speed and turned over several times. [The Veteran] was knocked unconscious." X-rays were taken and were "negative for fracture." The diagnosis was mild brain concussion. This injury was considered to have been incurred in the line of duty. At his separation physical examination in March 1967, clinical evaluation of the Veteran was completely normal. When he filed his service connection claim for a TBI in August 2008, the Veteran stated that his TBI symptoms included seizures, memory loss, headaches, and numbness in his arms and hands. On VA examination in February 2009, the Veteran's complaints included headaches that were "occasionally frontal and occasionally occipital," lasting from 30-60 minutes, and included "occasional throbbing," occasional "dizziness or vertigo, but not very often," trouble falling and staying asleep, occasional malaise, occasional balance problems, mild memory impairment since his in-service MVA, "problems making decisions," occasional numbness "from his neck down to his arms and into his fingers bilaterally" with "some weakness in his arms" since his in-service MVA, and occasional irritability and restlessness. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran stated that, although he had no memory of his in-service MVA, "[h]is memory starts eight days after the accident." There were no visual symptoms with his headaches which "can occur at variable times of the day. He has anywhere between zero and two headaches per week." He denied any weakness or paralysis, fatigue, mobility problems, decreased attention and concentration, speech or swallowing difficulties, bowel or bladder problems, erectile dysfunction, visual or hearing problems, decreased sense of taste or smell, hypersensitivity to sound or light, and heat or cold intolerance. The Veteran reported a history of a seizure "some time in the 1970s" but no further seizures. He also reported that his symptoms were stable. He denied that his symptoms had any effect on his activities of daily living. He currently was working "anywhere between 12 and 16 hours per week, doing some grounds cleaning work." He had retired in 2000 from full-time employment. Physical examination in February 2009 showed "Grade 5" motor function "throughout the upper and lower extremities," intact sensation to light touch in the bilateral lower extremities, "somewhat slow" rapid alternating movements in the upper extremities, heel to shin walking was normal, "a little bit of balance difficulties with tandem gaiting," gait was within normal limits, normal muscle tone, intact cranial nerves, and no skin, endocrine, or oral and dental problems. In evaluating the Veteran's cognitive impairment and other residuals of TBI not otherwise classified, the VA examiner stated that, although the Veteran had a complaint of mild memory loss, he had "no complaints of attention or concentration difficulties, and some complaints of problems with executive functions." The Veteran "was somewhat vague about answering" whether he had problems with judgment. He reported "he had made some wrong decisions as far as investments." A history of 2 DUI's in the 1970's was reported. The VA examiner concluded that the Veteran had mildly impaired judgment. The Veteran's social interaction was "probably occasionally inappropriate." He was oriented fully. "Motor activity appears to be normal." Because the Veteran stated that "he gets occasionally lost, and occasionally has problems reading maps," the VA examiner concluded that his visual spatial orientation "may be mildly impaired." This examiner also concluded that the Veteran's subjective symptoms did not appear to interfere with his employment. "At this point I would state that he has one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction, or both but do not preclude them." The Veteran was "able to communicate by spoken and written language, and could comprehend spoken and written language." His consciousness was normal. The impressions included mild TBI. On VA outpatient treatment in September 2009, the Veteran's complaints included memory problems since an in-service MVA in 1964 and a loss of consciousness for 8 days due to a TBI "as well as recent depression, anxiety, withdrawal, [and] nightmares." A history of a prior seizure was reported. Physical examination showed he appeared depressed, a bilateral hand tremor, no cog-wheeling, and 5/5 motor strength. The impressions included TBI in 1964 with psychiatric issues including PTSD, depression, and anxiety. In November 2009, it was noted that the Veteran was being "evaluate[d] for effects of his traumatic brain injury that occurred as a result of an MVA during his active duty and also to evaluate for PTSD related to the event." He denied any history of TBI after his in-service MVA. With respect to the TBI he incurred as a result of his in-service MVA, the Veteran stated that: This injury included [a loss of consciousness] and he was in a coma for at least 8 days....He experienced amnesia of the event and he still does not remember what happened during the day of the tragedy. What alarmed him and those close to him is that he had completely forgotten the accident and he was unaware that his friend who had been in the vehicle was killed. That day when he got up, he asked if his friend had stopped by because they were supposed to go out later. When the family informed the Veteran about what had happened, he was almost in disbelief....He was able to describe his recollection of the happenings starting from the time that he woke up... He reported having only 1 seizure in his life. Mental status examination of the Veteran showed full orientation, poor attention and focus, "very poor" short-term memory, extremely circumstantial and sometimes tangential thoughts, no psychomotor abnormalities, coherent speech that "was not pressured," no thought disorder "but he did express a guardedness and mild distrust for others," no delusions or hallucinations, suicidal or homicidal ideation, and fair judgment and insight. The Axis I diagnoses were cognitive disorder secondary to TBI resulting from an in-service MVA and PTSD secondary to in-service MVA. In May 2010, the Veteran's history of a TBI was noted. The Veteran also "reported symptoms that reflect an unspecified anxiety disorder and unspecified depression. Primary symptoms are anxiousness while driving, generalized worry about himself and his family, social isolation, irritability, and nightmares." The VA clinician opined that "some of these symptoms may be artifacts of his closed head injury." The Veteran has submitted several lay statements in support of his higher initial rating claim during the pendency of this appeal. Although these statements largely are indecipherable, the Veteran appears to be contending that his service-connected TBI is more disabling than currently evaluated. The Veteran testified at his October 2011 Board hearing that he incurred a head injury following his in-service MVA. See Board hearing transcript dated October 23, 2011, at pp. 2-3. He also testified that his current residuals of his in-service head injury included headaches, nightmares, social isolation, tremors, and a loss of balance. Id., at pp. 4-6, 8. On VA TBI examination in April 2012, the Veteran's complaints included "a loss of short- and long-term memory since 1964" when he was involved in an in-service MVA, problems with attention, intermittent dizziness "which he has had over the last few years, headaches since 1964, bilateral tinnitus since 1964, frequent insomnia," numbness of the left upper extremity, and "gait difficulties in that he occasionally drags his feet and occasional coordination and balance problems." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran denied any problems with vision, taste or smell, problems with speech, bowel or bladder problems, cranial nerve dysfunction, skin disorders, or endocrine dysfunction. The VA examiner stated that there was "objective evidence on testing of moderate impairment of memory, attention, concentration or executive functions resulting in a moderate functional impairment." Although the Veteran reported that he had poor judgment, he was unable to provide any examples to the VA examiner who concluded that the Veteran's judgment was mildly impaired. This examiner also stated that the Veteran's social interaction was occasionally inappropriate based on the Veteran's report that "he gets into occasional arguments." This examiner stated further that the Veteran "is occasionally disoriented to 1 of the 4 aspects of orientation." The Veteran's motor activity "is normal most of the time, but mildly slowed secondary to tremor, not apraxia, bilateral in the upper extremities," right greater than left. The Veteran has mildly impaired spatial orientation because he reported "difficulty reading maps." The VA examiner stated that the Veteran "has 3 or more subjective symptoms that might mildly interfere with work, activities of daily living, or other close relationships." Due to the Veteran's complaints of anxiety, depression, and mood swings "for many years," the VA examiner concluded that he had 1 or more neurobehavioral effects which interfered occasionally with workplace or social interaction or both but did not preclude either. The Veteran communicated by spoken and written language and comprehended both. His consciousness was normal. A history of a seizure in the late 1970's or early 1980's was noted with no further seizures. The Veteran stated that his headaches "began in 1964 shortly after his" in-service MVA although the VA examiner noted that the Veteran "is a somewhat poor historian. He cannot tell me how many headaches he gets per week. He tells me they last 30 minutes." His headaches varied "in location, sometimes frontal, sometimes temporal, sometimes occipital. He states the pain is constant at times, pulsating at times, and throbbing at times." He denied any nausea, vomiting, sensitivity to light or sound, and reported "blurred vision occasionally with the headaches." The Veteran would not describe the functional impact of his service-connected TBI on his employment. "He tells me he works part-time now doing whatever work he can find, but I am again unable to get him to be more specific." Physical examination in April 2012 showed upper and lower extremity strength "is grade 5- with the exception of his intrinsic muscles, which are grade 4+ bilaterally with a mild amount of intrinsic muscle atrophy," intact sensation to light touch, a positive Tinel's sign "for radiation of numbness into his thenar eminence bilaterally" at the wrist, "somewhat slow" rapid alternating movements of the bilateral lower extremities, bilateral dysmetria on finger-to-nose examination, heel-to-shin examination was intact, a markedly unsteady tandem gait, a somewhat slow natural gait with diminished arm swing bilaterally, intact cranial nerves, no evidence of spasticity, and bilateral hand tremors with movement, left greater than right. The diagnosis was post-traumatic headaches. Analysis The Board finds that the preponderance of the evidence is against the claim for an initial disability rating greater than 10 percent prior to April 16, 2012, and greater than 70 percent thereafter, for the Veteran's service-connected TBI. The Veteran has contended that his service-connected TBI is more disabling than currently evaluated and is, in fact, totally disabling. His assertions regarding the alleged worsening of his service-connected TBI are not supported by a review of the record evidence, however. The record evidence shows instead that, prior to April 16, 2012, the Veteran's service-connected TBI was manifested by, at worst, mild impairment in the facets of cognitive impairment and other residuals of a TBI due to such symptoms as memory loss, mildly impaired judgment, and occasionally inappropriate social interaction as seen on VA examination in February 2009. There also is no record evidence of multi-infarct dementia with brain trauma such that an initial rating greater than 10 percent prior to April 16, 2012, is warranted under the former rating criteria for evaluating TBI. See 38 C.F.R. §§ 4.124a, DC 8045, 9304 (effective prior to October 23, 2008). There further is no evidence of more than mild impairment in each area of dysfunction, including cognitive, emotional/behavioral, and physical, prior to April 16, 2012, such that an initial rating greater than 10 percent is warranted under the revised rating criteria for evaluating TBI. See 38 C.F.R. § 4.124a, DC 8045 (2012). VA examination in February 2009 showed complaints of mild memory loss and vague reported problems with executive functioning but no problems in attention or concentration. This equates to a "1" in the level of impairment for the memory, attention, concentration, and executive functions facet of cognitive impairment and other residuals of TBI not otherwise classified under the revised DC 8045. Id. The Veteran had mildly impaired judgment which equates to a "1" in the level of impairment for the judgment facet under the revised DC 8045. The Veteran's social interaction occasionally was inappropriate, resulting in a "1" in the level of impairment for the social interaction facet under the revised DC 8045. The Veteran occasionally was disoriented to 1 of the 4 aspects of orientation, meriting a "1" in the level of impairment for the orientation facet under the revised DC 8045. The Veteran's motor activity was normal which equates to a "0" for the motor activity facet under the revised DC 8045. The VA examiner concluded that the Veteran's visual spatial orientation "may be mildly impaired," equating to a "1" for the visual spatial orientation facet under the revised DC 8045. This examiner also concluded that the Veteran's subjective symptoms did not appear to interfere with his employment, equating to a "0" for the subjective symptoms facet under the revised DC 8045. Because the Veteran communicated and comprehended both spoken and written language, his symptoms are assigned a "0" for the communication facet under the revised DC 8045. The Veteran also had normal consciousness so a total rating for the consciousness aspect under the revised DC 8045 is not warranted. Id. Accordingly, prior to April 16, 2012, the overall percentage evaluation based on the level of the highest facet (in this case, a "1" for several of the facts of cognitive impairment under the revised DC 8045) should be 10 percent under the revised rating criteria for evaluating TBI. Id. The record evidence demonstrates that, prior to April 16, 2012, the Veteran's service-connected TBI is manifested by, at worst, mildly disabling residuals in the facets of cognitive impairment without evidence of multi-infarct dementia due to brain trauma such that an initial rating greater than 10 percent is not warranted under either the former or revised rating criteria for evaluating TBI. 38 C.F.R. §§ 4.124a, DC 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, DC 8045 (2012). The Veteran appears to be compensated appropriately for the level of disability that he experiences as a result of his service-connected TBI prior to April 16, 2012. He also has not identified or submitted any competent evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to April 16, 2012, for this disability. The Board again notes that service connection currently is in effect for anxiety disorder, evaluated as 50 percent disabling effective August 25, 2008. Although VA outpatient treatment in September and November 2009 and in May 2010 noted the presence of psychiatric issues, to include cognitive disorder and PTSD, associated with the Veteran's service-connected TBI, consideration of his emotional/behavioral dysfunction due to service-connected TBI is not required in determining the appropriate disability rating based on facets of his cognitive impairment. See 38 C.F.R. § 4.124a, DC 8045 (2012). In summary, the Board finds that the criteria for an initial rating greater than 10 percent prior to April 16, 2012, for the Veteran's service-connected TBI are not met. The Board also finds that the preponderance of the evidence is against assigning an initial rating greater than 70 percent effective April 16, 2012, for the Veteran's service-connected TBI. The record evidence does not demonstrate that any of the facets of the Veteran's cognitive impairment and other residuals of his service-connected TBI result in total impairment such that a 100 percent rating effective April 16, 2012, is warranted for this disability. Id. The evidence shows instead that the highest level of impairment experienced by the Veteran as a result of his service-connected TBI is a "3" for the memory, attention, concentration, and executive functions facet as seen on VA examination on April 16, 2012. At that examination, the VA examiner specifically found "objective evidence on testing of moderate impairment of memory, attention, concentration or executive functions resulting in a moderate functional impairment." This equates to a "3" for memory, attention, concentration, and executive functions facet under the revised rating criteria for evaluating a TBI. Id. The Board observes that the Veteran's level of impairment in the judgment, social interaction, orientation, visual spatial and orientation facets resulted in a "1" in the level of impairment for each of these facets, which is unchanged from his VA examination in February 2009. VA examination in April 2012 also showed that the Veteran's motor activity "is normal most of the time, but mildly slowed secondary to tremor, not apraxia, bilateral in the upper extremities," right greater than left, resulting in a "2" in the level of impairment for the motor activity facet. The April 2012 VA examiner found that the Veteran "has 3 or more subjective symptoms that might mildly interfere with work, activities of daily living, or other close relationships." This equates to a "1" in the level of impairment for the subjective symptoms facet. Because the Veteran communicated and comprehended both spoken and written language, his symptoms are assigned a "0" for the communication facet. The Veteran also had normal consciousness so a total rating for the consciousness facet is not warranted. Id. Accordingly, effective April 16, 2012, the overall percentage evaluation based on the level of the highest facet (in this case, a "3" for the memory, attention, concentration, and executive functions facet) should be 70 percent under the revised rating criteria for evaluating TBI. Id. The record evidence demonstrates that, effective April 16, 2012, the Veteran's service-connected TBI is manifested by, at worst, moderate functional impairment due to moderate impairment in the memory, attention, concentration or executive functions facet such that an initial rating greater than 70 percent effective April 16, 2012, is not warranted under the revised rating criteria for evaluating TBI. There is no evidence of total disability in any of the facets of cognitive impairment such that a 100 percent rating effective April 16, 2012, is warranted for the Veteran's service-connected TBI. The Board observes again that the Veteran's level of impairment in the judgment, social interaction, orientation, visual spatial orientation, and orientation facets was unchanged from his VA examination in February 2009. The Veteran appears to be compensated appropriately for the level of disability that he experiences as a result of his service-connected TBI effective April 16, 2012, as the record evidence supported assigning a higher initial 70 percent rating as of that date. See 38 C.F.R. § 4.124a, DC 8045 (2012). He also has not identified or submitted any competent evidence demonstrating his entitlement to an initial rating greater than 70 percent effective April 16, 2012, for this disability. Although VA examination in April 2012 documented the presence of 1 or more neurobehavioral effects that interfered occasionally with either workplace or social interaction or both but did not preclude such interaction, because service connection is in effect for anxiety disorder, consideration of his emotional/behavioral dysfunction due to service-connected TBI is not required in determining the appropriate disability rating based on facets of his cognitive impairment. Id. In summary, the Board finds that the criteria for an initial rating greater than 70 percent effective April 16, 2012, for the Veteran's service-connected TBI are not met. The Board finally finds that consideration of additional staged ratings is not warranted for the Veteran's service-connected TBI. As discussed above, the Veteran is compensated appropriately for the level of disability that he experiences due to his service-connected TBI for each of the time periods considered on appeal. And it appears that a higher initial 70 percent rating was assigned effective April 16, 2012, for the Veteran's service-connected TBI because of the worsening disability he experienced as of that date. Thus, consideration of additional staged ratings is not warranted. See Fenderson, 12 Vet. App. at 119. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected TBI. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluations assigned for the Veteran's service-connected TBI are not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected TBI. This is especially true because the 70 percent rating currently assigned for the Veteran's TBI effective April 16, 2012, contemplates moderately severe impairment (level "3") in at least 1 facet of cognitive impairment and other residuals of a TBI. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. The Veteran has not contended, and the medical evidence does not show, that he was hospitalized for his service-connected TBI at any time during the pendency of this appeal. The Veteran also has contended that his service-connected TBI precludes him from securing or maintaining substantially gainful employment. The record evidence does not support his assertions, however. The Veteran reported at both of his VA examinations in February 2009 and in April 2012 that he had retired from full-time work but was working at least part-time. The February 2009 VA examiner concluded that the Veteran's subjective symptoms "did not interfere with work." This examiner also concluded that, although the Veteran's neurobehavioral effects "occasionally interfered with workplace interaction," such interaction was not precluded by his service-connected TBI. The April 2012 VA examiner made similar findings about the impact of the Veteran's service-connected TBI on his employability. The Board also notes that the Veteran's TDIU claim is being remanded for additional development (as outlined below). In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial rating greater than 10 percent prior to April 16, 2012, and greater than 70 percent thereafter, for a traumatic brain injury (TBI) is denied REMAND The Veteran has contended that he incurred paresthesia in each of his upper extremities during active service or, alternatively, his service-connected TBI caused or contributed to his current paresthesia in each of his upper extremities. He also contends that his service-connected disabilities preclude him from securing or maintaining substantially gainful employment. The Board finds that additional development is necessary before the underlying claims can be adjudicated on the merits. With respect to the Veteran's service connection claims for paresthesia in each of his upper extremities, the Board notes that, in its most recent remand in March 2012, the RO/AMC was asked to schedule the Veteran for appropriate VA examination "to determine whether he currently has paresthesia of the left or right upper extremity that had its onset in or is related to military service or [was] caused or aggravated by service-connected traumatic brain injury." See Board remand dated March 13, 2012, at pp. 6 (emphasis added). The RO included the Board's remand language in the VA examination request completed later in March 2012. Unfortunately, although this examination was conducted on April 16, 2012, the VA examiner did not provide the requested opinion concerning the contended causal relationship between the Veteran's active service and his paresthesia in each of his upper extremities on a direct service connection basis. See generally 38 C.F.R. §§ 3.303, 3.304 (2012). A review of this examination report shows that, following physical examination of the Veteran, the VA examiner opined that "it is less likely as not that the [Veteran's] current upper extremity paresthesias are secondary to his traumatic brain injury nor was it aggravated by his traumatic brain injury." A review of the claims file shows that there is insufficient medical evidence to adjudicate the issue of whether the Veteran's currently diagnosed paresthesias in each of his upper extremities is related directly to active service. Id. Because the April 2012 VA examiner did not answer all of the questions asked in the Board's March 2012 remand, the Board finds that, on remand, the April 2012 VA examination report should be returned to this examiner for an addendum in which he provides an opinion on the contended causal relationship between the Veteran's active service and his paresthesias in each of his upper extremities. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO/AMC to re-certify this appeal to the Board in February 2013 without complying with the March 2012 remand instructions. Given this error, another remand is required. With respect to the Veteran's TDIU claim, as noted in the Introduction, the record evidence indicates that the Veteran currently meets the schedular criteria for a TDIU. Service connection is in effect for a TBI, evaluated as 70 percent disabling, anxiety disorder, evaluated as 50 percent disabling, and for post-traumatic headaches associated with a TBI, evaluated as zero percent disabling. The Veteran's current combined disability evaluation is 90 percent. See 38 C.F.R. § 4.16(a) (2012). As also noted in the Introduction, the Board is prohibited from granting a TDIU claim in the first instance. The Veteran has contended throughout the appeal period that his service-connected disabilities render him unemployable. The record evidence does not contain an opinion regarding the impact of the Veteran's service-connected disabilities on his employability, however. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate VA examination to determine the impact of his service-connected disabilities on his employability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the VA Medical Center in Salisbury, North Carolina, and ask the VA examiner who conducted the Veteran's April 16, 2012, peripheral neuropathy examination to provide an addendum to this examination report. The claims file and a copy of this remand must be provided to this examiner for review. In his addendum, this VA examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed paresthesias in each of his upper extremities is related to active service or any incident of service. The examiner should provide an etiological opinion for each of the Veteran's upper extremities. A complete rationale must be provided for any opinions expressed. 2. If, and only if, the VA examiner who conducted the Veteran's April 16, 2012, VA peripheral neuropathy examination is not available, then schedule the Veteran for appropriate in-person VA examination to determine the nature and etiology of his paresthesia of the left upper extremity and paresthesia of the right upper extremity. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file, and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that paresthesia of the left upper extremity, if diagnosed, is related to active service or any incident of service. The examiner also is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that paresthesia of the right upper extremity, if diagnosed, is related to active service or any incident of service. The examiner further is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that paresthesia of the left upper extremity, if diagnosed, was caused or aggravated (permanently worsened) by the Veteran's service-connected traumatic brain injury (TBI). The examiner finally is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that paresthesia of the right upper extremity, if diagnosed, was caused or aggravated (permanently worsened) by the Veteran's service-connected TBI. A complete rationale must be provided for any opinions expressed. 3. Schedule the Veteran for appropriate in-person VA examination which addresses the impact of his service-connected disabilities on his employability. The claims file and a copy of this remand should be provided to the examiner for review. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete employment history, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the impact of his service-connected disabilities on his employability, the examiner is asked to opine whether the Veteran's service-connected disabilities alone preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. A complete rationale must be provided for any opinions expressed. The examiner is advised that service connection currently is in effect for a traumatic brain injury (TBI), anxiety disorder, and for post-traumatic headaches associated with a TBI. The examiner also is advised that the Veteran contends that his service-connected disabilities preclude him from securing and following substantially gainful employment. 4. The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs