Citation Nr: 1314388 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 04-38 243A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of an in-service craniotomy. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from November 1978 to March 2002. The case originally came before the Board of Veterans' Appeals (Board) on appeal of an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Diego, California (RO), which granted service connection for residuals of an in-service craniotomy and assigned a 10 percent rating effective April 1, 2002. The Veteran timely appealed the assigned rating. Most recently, the Board remanded this case to the RO in June 2012 for neuropsychological testing with an appropriate examiner to determine the symptomatology due to residuals of the Veteran's in-service craniotomy. An appropriate VA evaluation was obtained in July 2012. Consequently, there has been substantial compliance with the June 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Board notes that it was contended on behalf of the Veteran in March 2013 that the issues of service connection for erectile dysfunction and a psychiatric disability have been raised but have not been adjudicated by VA. The Board would point out, however, that the Veteran is service connected for hypertension with erectile dysfunction and that a December 2011 letter to the Veteran noted that the issue of service connection for depression was deferred because of the need for additional information or evidence. To the extent that the claim for service connection for a psychiatric disability is not currently being adjudicated, that issue is referred to the RO for appropriate development and adjudication. FINDINGS OF FACT 1. Prior to October 23, 2008, the Veteran's residuals of a craniotomy did show compensable symptoms involving neurological deficits such as seizures, stroke, hemiplegia, epiliform seizures, facial nerve paralysis. 2. From October 23, 2008 through February 9, 2011 and beginning July 19, 2012, the Veteran's craniotomy residuals of dizziness and occasional vertigo were included within the rating criteria for traumatic brain injury (TBI) and resulted in a score of "1" on the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified; greater impairment consistent with a higher score on the table, including increased cognitive deficits, behavioral, psychological, or physical symptoms not subject to separate ratings were not manifested. 3. From February 10, 2011 through July 18, 2012, the Veteran's craniotomy residuals resulted in a score of "2" on the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified; greater impairment consistent with a higher score on the table, including increased cognitive deficits, behavioral, psychological, or physical symptoms not subject to separate ratings were not manifested. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for residuals of a craniotomy under the rating criteria in effect prior to October 23, 2008 were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.124a including Diagnostic Code 8045 (2008). 2. The criteria for a disability rating in excess of 10 percent for residuals of a craniotomy under the current rating criteria from October 23, 2008 to February 9, 2011 and beginning July 19, 2012 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.124a including Diagnostic Code 8045 (2012). 3. The criteria for a disability rating of 40 percent, but no higher, for residuals of a craniotomy under the current rating criteria from February 10, 2011 through July 18, 2012 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.124a including Diagnostic Code 8045 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Letters were sent to the Veteran in February and March 2007, prior to adjudication, informing him of the requirements needed to establish entitlement to service connection. Service connection was subsequently granted for TBI, PTSD with depression, and posttraumatic headaches. Although the Veteran was not notified of the requirements to establish entitlement to an increased rating until later, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as the claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The appropriate notice has been given in this case with respect to the increased rating claims on appeal. In accordance with the requirements of VCAA, the above-noted letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private medical evidence was subsequently added to the claims files after the letters. In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was informed in the February and March 2007 letters on disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Relevant VA examinations were conducted in December 2008 and March 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the December 2008 and March 2011 VA evaluations obtained in this case are adequate, as these evaluations provide the relevant symptomatology for the disability at issue. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence that is pertinent to the claim decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claim. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Analysis of the Claim An October 2002 rating decision granted service connection for neurological residuals of craniotomy surgery and assigned a 10 percent rating effective April 1, 2002. The Veteran timely appealed. This rating decision also granted service connection and separate compensable ratings for residual skull loss from a craniotomy and for residual craniotomy scars. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that an unlisted organic disease of the central nervous system, under Diagnostic Code 8099, was the service-connected disability, and residuals of TBI, under Diagnostic Code 8045, was a residual condition. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). During the course of this appeal, the regulations for the evaluation of brain disease due to trauma or TBI under Diagnostic Code 8045 were amended. See 73 Fed. Reg. 54,693 - 54,708 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124a, Note (5). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g) ; VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Therefore, in this case, prior to October 23, 2008, the Board may apply only the previous version of the rating criteria. As of October 23, 2008, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. Stated differently, in this case a staged rating is based on a liberalizing change in rating criteria. In accordance with 38 U.S.C.A. § 5110(g), the effective date may be no earlier than the effective date of the liberalizing act or administrative issue. Under the previous regulation, Diagnostic Code 8045 provides for the evaluation of brain disease due to trauma. 38 C.F.R. § 4.124a (2008). This diagnostic code specifies that purely neurological disabilities are rated under the applicable diagnostic code. Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma) and may not be combined with any other rating for a disability due to brain trauma. A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 may not be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Id. The criteria of Diagnostic Code 9440 provide for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The criteria provide for a 70 percent rating where the evidence shows occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The criteria provide for a 50 percent rating under Diagnostic Code 9440 where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria provide for a 30 percent rating where the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130, Diagnostic Code 9440 (2008). Under the amended regulation, Diagnostic Code 8045 again provides for the evaluation of TBI. 38 C.F.R. § 4.124a (effective October 23, 2008). But now 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. 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." Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, 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 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. Id. 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." Id. 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 traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, 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 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. Id. 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. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. 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 a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). It was reported on VA evaluation in August 2001 that the Veteran had previously undergone four cranial surgeries due to hematomas in the surgical bed, which left him with dizziness and recurrent paresthesias in the extremities. He had not had recurrent seizures or headaches. The diagnoses were history of fourth ventricular ependymoma with resection and multiple craniotomies due to bleeding thru the vascular bed; and residual paresthesias in the extremities with imbalance and memory impairment. A September 2002 MRI of the brain revealed two mildly prominent foci of increased signal in the centrum semiovale of both cerebral hemispheres. It was noted on QTC evaluation in February 2004 that the Veteran gave a history of intermittent paresthesias. The examiner did not find any objective neurological deficits. The diagnosis was status post craniotomy for ependymoma with residual scars, recurrent paresthesias, dizziness, and partial erectile dysfunction. It was noted on a private MRI of the brain dated in August 2005 that the Veteran complained of dizziness and vertigo for the previous two weeks. The MRI did not show masses or abnormal enhancement within the cerebellar pontine angles or internal auditory canals. VA treatment reports dated through March 2010 reveal that brain MRI reports for September 2007 and January 2010 were without significant change from prior study. A VA neurological evaluation was conducted in March 2010, which included review of the claims files. The Veteran reported a history of three cranial surgeries for a brain tumor, as well as radiation treatment. It was noted that subsequent multiple MRI scans did not reveal any evidence of recurrence. The Veteran complained of depression, hearing loss, generalized aches and pains, some forgetfulness and balance problems, erectile dysfunction, and sleep apnea. The examiner concluded that neurological evaluation was normal and that most of the Veteran's complaints did not appear to relate to his tumor, surgery, or any subsequent complications of the tumor or radiation therapy. The impression was posterior fossa ependymoma, removed in 1997. A subsequent VA neurological evaluation, which included review of the claims files, was conducted on February 10, 2011. A medical history reported that the Veteran's initial injury was mildly severe and that his condition had stabilized. There was no history of seizures, pain, autonomic dysfunction, weakness, or paralysis. He complained of headaches once a month, pain level 5-6/10, lasting one hour; stress sometimes triggered his headaches. He had intermittent dizziness or vertigo with sudden position changes; he had intermittent loss of balance in the dark, going down steps, or getting out of the car; and he had intermittent numbness and tingling in the upper and lower extremities. It was noted in February 2011 that there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. Judgment, motor activity, social interaction, orientation, visual spatial orientation, communication, and consciousness were normal. There were no neurobehavioral effects. Subjective symptoms did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The diagnosis was posterior fossa ependymoma removal with residual mild subjective paresthesias, mild memory impairment, and mild cognitive impairment. The disability was considered as likely as not related to brain surgery. The disability had no effect on his occupation or daily activities. It was noted on VA TBI evaluation on July 19, 2012 that the claims files had been reviewed. The Veteran complained of residuals of TBI involving dizziness and vertigo approximately once every two months; progressive memory difficulties and difficulty reasoning, which was intermittent and sometimes impacts his work as an army instructor; tongue thickness when speaking that comes and goes; fatigue that can be a daily problem; intermittent paresthesias in the legs, arms, and shoulders; mood swings; anxiety; depression; sensitivity to light; and insomnia. Forgetfulness was more likely on days where depression and anxiety were more prominent. The residual conditions attributable to TBI did not impact the Veteran's ability to work. With respect to the ten facets used for evaluation in TBI cases, it was noted in July 2012 that there was a complaint of mild memory loss without objective evidence on testing. Judgment, social interaction, orientation, motor activity, visual spatial orientation, communication, and consciousness were normal. Subjective symptoms did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. There were one or more neurobehavioral effects that did not interfere with workplace or social interaction. According to the examiner, almost all of the Veteran's physical symptoms were less likely as not related to brain surgery and tumor because the temporal profile of gradual worsening of symptoms through the years was not consistent with the Veteran's treatment history, because many of the physical symptoms appeared more likely related to his depression and anxiety, because neurological testing was normal, and because a structural lesion in the brain would not typically cause intermittent symptoms. The symptom more likely than not related to TBI was chronic dizziness, as well as the Veteran's intermittent vertigo. Subsequent VA treatment reports of record dated through March 2013 do not show treatment for TBI. Under the rating criteria in effect prior to October 23, 2008, the Board finds that a rating in excess of 10 percent is not assignable under Diagnostic Code 8099-8045. As noted above, purely neurological disabilities are rated under the applicable diagnostic code, which does not apply in this case. Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. The Veteran has not been diagnosed with multi-infarct dementia associated with brain trauma at any point during the pendency of the appeal. For the subsequent time period in question-October 23, 2008 forward, the March 2010, February 2011, and July 2012 VA examinations are the relevant medical evidence to consider to determine the highest level of severity for any facet of cognitive impairment. Under the rating criteria effective October 23, 2008, the Board finds that an increased rating of 40 percent is warranted from February 10, 2011, the date of VA evaluation, through July 18, 2012, the day prior to VA evaluation, because of the finding in February 2011 of objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, which translates to a level of impairment of "2." A higher rating is not warranted during this time period because findings for the other nine facets of brain injury residuals are no higher than level "1." A 10 percent rating is warranted again beginning on July 12, 2012 under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" because the medical evidence does not reflect an overall disability picture consistent with a level of impairment of "2" (that is, 40 percent disabling) for any one facet. 38 C.F.R. § 4.124a (effective October 23, 2008). The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets, and a higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Based on the findings in July 2012, the Board assigns a level of severity of "1" for the facet pertaining to memory, attention, concentration and executive functions because the VA examiners reported no more than mild impairment of memory, attention, concentration, and executive functions. A higher level would require objective evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The VA examiner in July 2012 found normal judgment. As such, a level of severity of "0" has been assigned for the judgment facet. A higher level would require a finding of mildly impaired judgment. A level of severity of "0" has been assigned for the social interaction facet, because the VA examiner found evidence in July 2012 that social interaction was routinely appropriate. A higher evaluation is not warranted unless a medical examiner finds evidence that social interaction is occasionally inappropriate. The VA examiner found in July 2012 that the Veteran was always oriented to person, time, place, and situation, which warrants a level of impairment of "0." A higher evaluation is not warranted unless the Veteran is occasionally disoriented to at least one of the four aspects of orientation. The Board assigns a level "0" for motor activity because motor activity was normal in July 2012. A higher evaluation is not warranted unless motor activity is at least mildly slow at times due to apraxia. A level of "0" is assigned for visual special orientation because it was normal in July 2012. A higher level is assigned when visual special orientation is at least mildly impaired, such as when the Veteran gets occasionally gets lost in unfamiliar surroundings. A level of severity of "1" has been assigned for the subjective symptoms facet, because the 2012 VA examiner found evidence of subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. A higher overall evaluation is assigned when there are three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Based on the findings in July 2012, a level of severity of "1" has been assigned for the neurobehavioral effects facet, as the findings were of one or more neurobehavioral effects that do not interfere with workplace or social interaction. A higher evaluation is not warranted unless the examiner finds evidence of one or more neurobehavioral effects that, at least, occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. Communication and consciousness were noted to be normal on VA evaluation in July 2012. As such, a level of severity of "0" is assigned for the facets pertaining to communication and consciousness. In order to obtain a higher level for communication, there would need to be at least evidence that comprehension or expression, or both, of either spoken or written language is only occasionally impaired. With respect to consciousness, the only other level is a total level of impairment, which involves a persistently altered state of consciousness, such as vegetative state, minimally responsive state, or coma. As noted above, the evaluation assigned for cognitive impairment and other residuals of TBI not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facets. To obtain a 40 percent evaluation, a severity level of "2" would have to be assigned for one of the 10 facets discussed above. However, "1" is the highest level of severity noted for any of the facets in July 2012, which was assigned for several of the facets listed. Therefore, based on the July 2012 VA findings, a rating in excess of 10 percent is not warranted because none of the 10 facets is assigned a level of severity of "2". In summary, the Board finds that the evidence does not support a 40 percent disability rating beginning July 19, 2012 for other symptoms of the Veteran's residuals of a craniotomy under Diagnostic Code 8045. 38 C.F.R. § 4.124a. The Veteran is competent to report his subjective symptoms, such as dizziness and vertigo. His complaints are credible. The Veteran's complaints have been considered in the above noted decision; however, it was concluded on VA evaluation in July 2012 that only the Veteran's complaints of dizziness and intermittent vertigo were considered to be due to his service-connected residuals of a craniotomy. The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the Veteran's service-connected residuals of a craniotomy are contemplated and reasonably described by the rating criteria discussed above. The Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's residuals of a craniotomy present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is an element of any appeal for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2010). In this case, however, TDIU consideration is not warranted. The Veteran indicated on evaluation in July 2012 that he was working as an army instructor. He has not contended, and the evidence does not indicate, that the Veteran is unemployable as a result of his service-connected residuals of a craniotomy. Finally, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a rating in excess of 10 percent for the Veteran's residuals of a craniotomy prior to February 10, 2011 and beginning July 19, 2012 is denied. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 3.102 ; 4.3; Gilbert, 1 Vet. App. at 55. ORDER An initial rating in excess of 10 percent for residuals of a craniotomy prior to February 10, 2011 is denied. An initial rating of 40 percent for residuals of a craniotomy is granted from February 11, 2011 through July 18, 2012, subject to the controlling regulations applicable to the payment of monetary benefits. An initial rating in excess of 10 percent for residuals of a craniotomy beginning July 19, 2012 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs