Citation Nr: 1318369 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-47 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for residuals of a head injury. REPRESENTATION Veteran represented by: James G. Fausone, Attorney WITNESSES AT HEARING ON APPEAL Veteran and witness, J.C. ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to November 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO granted service connection for a head injury and assigned a noncompensable initial disability rating, effective November 25, 2008. The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board via a video conference (video conference hearing) in January 2011. A transcript of that hearing has been associated with the claims file. In a November 2011 decision, the Board awarded service connection for tinnitus, which was effectuated by the RO in a December 2011 rating decision, thereby constituting a full grant of the benefits sought on appeal. Thus, as this issue was granted in full it is not in appellate status before the Board and need not be addressed further. The Board also remanded the issue of entitlement to an initial compensable disability rating for residuals of a head injury for additional development. In an April 2012 rating decision, the RO awarded an initial 10 percent disability rating the Veteran's service-connected residuals of a head injury, effective November 25, 2008. In August 2012, the Board again remanded the issue on appeal for additional development. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in March 2013, which addressed this additional evidence. FINDING OF FACT Throughout the duration of the appeal, the Veteran's residuals of a head injury have been productive of objective evidence on testing of mild impairment of memory, resulting in mild functional impairment, a level of impairment of 2 for his memory, attention, concentration and executive function facet of cognitive impairment; all other facets of cognitive impairment and other residuals of traumatic brain injury (TBI), not otherwise classified, do not rise to level 2 of impairment. CONCLUSION OF LAW The criteria for a 40 percent disability rating have been met for residuals of a head injury not otherwise compensated for by ratings specifically assigned under other diagnoses. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.124a, Diagnostic Code 8045 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the April 2009 rating decision, he was provided notice of the VCAA in December 2008. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in December 2008 pertaining to the downstream disability rating and effective date elements of his claims. Service connection for residuals of a head injury has been established and an initial rating for this condition has been assigned. The claim has therefore been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. Notice under the VCAA is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. Rather, remanding this case to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes Social Security Administration (SSA) records, a private magnetic resonance angiogram (MRA) report, VA outpatient treatment reports, VA examinations and statements and testimony from the Veteran and his attorney. The Board notes that the April 2009 and April 2012 VA examination reports and December 2012 VA opinion report reflect that the examiners reviewed the Veteran's past medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examinations are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This case was previously remanded by the Board in August 2012 to retrieve outstanding treatment records, obtain SSA records, and to provide the Veteran with an adequate VA supplemental opinion for the residuals of his head injury. As SSA and outstanding VA outpatient treatment records have been retrieved and a VA examiner provided a supplemental opinion regarding the residuals of a head injury and complied with the Board's remand instructions, the Board is satisfied that the development requested by its August 2012 remand has now been satisfactorily completed and substantially complied with respect to this issue. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with). During the January 2011 hearing, the Veterans Law Judge explained fully the issues and suggested the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position pursuant to 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). The transcript of the hearing reflects that the Veterans Law Judge identified the material issues - entitlement to service connection for tinnitus, which the Board granted in the November 2011 decision, and entitlement to an increased rating for a head injury. The Veterans Law Judge elicited information as to the current symptoms due to his head injury residuals including any potential physical, cognitive and psychological symptoms. She also sought to identify where the Veteran was treated for his disability, and the case was thereafter remanded to obtain the Veteran's complete records. There is no indication that there is insufficient evidence to assign a rating for residuals of the Veteran's head injury or that there is any existing relevant evidence not associated with the claims file. It is clear from the hearing transcript that the Veteran testified as to all symptoms that he believes or that it is reasonable to believe could be residuals of his head injury. Therefore, the Veteran was not prejudiced by the hearing that was provided. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The January 2011 hearing was legally sufficient. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his attorney have been accorded ample opportunity to present evidence and argument in support of his appeal. Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When a Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as "staged ratings." See id. at 126. Effective October 23, 2008, VA revised that portion of the Rating Schedule that addresses neurological conditions and affective disorders to provide detailed and updated criteria for evaluating residuals of traumatic brain injury (TBI). See 73 Fed. Reg. 54693 (September 23, 2008). As in this case, the revised criteria apply to all applications for benefits received by VA on or after October 23, 2008. The new version of Diagnostic Code 8045 continues to provide for the evaluation of residuals of TBI. 38 C.F.R. § 4.124a (effective October 23, 2008). The criteria are as follows: There are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 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. Cognitive impairment is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. 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. should also be considered. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100-percent evaluation should be assigned 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. Id. The 10 important facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" are as follows: (1) Memory, attention, concentration, executive functions; (2) Judgment; (3) Social interaction; (4) Orientation; (5) Motor activity; (6) Visual spatial orientation; (7) Subjective symptoms; (8) Neurobehavioral effects; (9) Communication; and (10) Consciousness. Id. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified"' with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A veteran whose residuals of TBI are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114, if applicable. Analysis The Veteran and his attorney maintain that his current residuals of a head injury warrant a higher disability rating than the 10 percent currently assigned. In a May 2012 statement, the Veteran's attorney argues that the Veteran met the criteria for a higher rating by citing to at least three facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," which he felt should be evaluated at a level 2 impairment, qualifying for the assignment of a 40 percent disability rating, and thereby meeting the criteria for a higher rating. While the Veteran's attorney has also discussed his past functioning preceding the date of his claim by many years, and has submitted transcripts from 1982 and 1983, the Board observes these arguments and records do not relate to the level of his current functioning from the date of his claim on appeal and are therefore not relevant to the current claim. See 38 C.F.R. § 3.400 (2012). SSA records reflect that the Veteran's primary disabilities included a cardiac disability and peripheral neuropathy and the significant impairments noted did not include any residuals of a head injury. VA outpatient treatment reports from within a year of the November 2008 claim to January 2012 reflect that the Veteran continued to complain of memory problems, anxiety, dizziness and headaches, none of which had been diagnosed as a separate disability. In addition, mental health and neurocognitive assessments during this time revealed the Veteran was alert, fully oriented and conversant, and had grossly intact motor and sensory systems, normal speech, a normal psychomotor system, logical and goal directed thought processes, and good judgment. At an April 2009 VA examination for TBI, the Veteran reported that his family ran a furniture restoring and restaurant updating business that he worked in for years following his active service and that he had no difficulties functioning at that position and still worked for the company. He also reported having some positional vertigo over the past five to 10 years. He stated he was not having significant post concussion symptoms of decreased cognitive functioning and that the course since the onset of his initial head injury in service was stable. The Veteran reported a mild severity of the initial injury and that the condition had stabilized. There was no history of: seizures; balance or coordination problems; pain; autonomic dysfunction; numbness; paresthesias or other sensory changes; weakness or paralysis; mobility problems; ambulatory problems; sleep disturbance; fatigue; malaise; psychiatric symptoms; memory impairment; other cognitive symptoms; neurobehavioral change; bowel problems; bladder problems; erectile dysfunction; hypersensitivity to light/sound; vision problems; speech/swallowing difficulty; decreased sense of taste or smell; endocrine dysfunction; or cranial nerve dysfunction. The Veteran reported other symptoms of rare bifrontal headaches that were not prostrating and occurred several times per month. He also noted having some positional labyrinthitis and tinnitus. A physical examination revealed the Veteran was oriented in all three spheres, reflexes were all normal; motor functioning revealed active movement against full resistance, normal muscle tone an no muscle atrophy. There were no physical findings of: gait abnormalities; imbalance or tremors; muscle atrophy or loss of muscle tone; spasticity or rigidity; fasciculations; cranial nerve dysfunction; endocrine dysfunction; skin breakdown; vision problems; cognitive impairment; psychiatric manifestations; or other abnormalities. There were no complaints of impairment of memory, attention, concentration or executive functions. Normal judgment, motor activity, visual spatial orientation, and consciousness were noted. The Veteran's social interaction was routinely appropriate. He was always oriented to person, time, place and situation. His subjective symptoms did not interfere with work, instrumental activities of daily living, or work, family or other relationships. He was noted to have one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction, although no specific neurobehavioral effect was noted. The Veteran was able to communicate by spoken and written language and able to comprehend spoken and written language. He was diagnosed with mild post concussion, with no significant residual signs or symptoms and had age-related, benign, positional vertigo. No significant effects on his usual occupation or effects on his usual daily activities were noted. The Veteran's age-related, benign, positional vertigo was found to be less likely than not related to the mild concussion he had in 1977. During a January 2011 videoconference hearing, the Veteran reported that his main symptom of his residuals of a head injury was balance, which he was told was positional vertigo. He stated he had problems with dizziness constantly and it had gotten worse. The Veteran stated he was not treated for psychiatric problems. He also reported having a scar under his hair that did not hurt, was not tender and he had gotten over it. The Veteran testified that he had problems with short term memory, headaches and anxiety. The Veteran's witness, J.C. testified that the Veteran had problems with driving and falling when he walked, although he did not spend a lot of time with him. In a January 2012 VA outpatient treatment report, the Veteran underwent a Montreal Cognitive Assessment (MOCA) cognitive screen. His current complaints included forgetting what he read immediately, although he could comprehend what he read and anxiety while driving and in grocery stores. The Veteran reported experiencing memory problems for greater than a year, after his head injury in the military. He described his problems as steadily worsening over the years. His total MOCA score was 21 out of 30, indicating mild symptoms. Mild impairment of orientation, verbal memory, and visuospatial orientation were noted. The Veteran's scores also indicated some significant impairment of executive functioning and language. He was assessed to forget verbal information quickly. The risk factors of cognitive difficulties included alcoholism (in remission), coronary heart disease, a family history of dementia, a history of TBI and sleep apnea (now treated). No areas of functional decline were found, including basic activities of daily living, independent activities of daily living, personality or behavioral functioning, impairment in social functioning, judgment, decision making, problem solving or medication management. The Veteran's overall score was noted to fall within the mild impairment range with areas affected including verbal memory, visuospatial, orientation, and to the greatest extent, executive functioning. At an April 2012 VA examination for TBI, the Veteran was diagnosed with traumatic brain injury. He reported problems with memory, weekly headaches, positional vertigo and anxiety. He stated he liked to be around his buddies and that he drove in the right lane in case he had to pull over. The Veteran also reported staying close to home when he went out because of his heart condition. He practiced daily rituals and used a daily planner. Complaints of mild memory loss, attention, concentration or executive functions, but without objective evidence on testing, were noted. Judgment, motor activity, visual spatial orientation and consciousness were normal. The Veteran's social interaction was routinely appropriate. He was always oriented to person, time, place and situation. He was assessed with three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family or other close relationships. No neurobehavioral effects were noted. The Veteran was found to be able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. No additional subjective symptoms, physical or neurological conditions, or residuals attributable to TBI were found. The examiner found there were no scars and noted no scar was appreciated on physical examination, however there was moderate dander and several lesions throughout the scalp. The examiner noted findings of an August 2009 MRA of the head showing an essentially unremarkable MR angiogram, a July 2009 computerized tomography (CT) scan of the head and an April 2010 ultrasound. The Veteran's residual conditions were not found to impact his ability to work. The examiner opined that the Veteran had no persistent postconcussive syndrome. He found that there were no notes in the military that reflected complaints of difficulty with memory, dizziness, headaches or changed attitude post concussion. The examiner also noted a review of VA treatment records showed the Veteran had hundreds of visits to multiple specialist for multiple medical issues from 1999 to December 2008 without ever mentioning difficulty with memory, chronic recurrent headaches or dizziness/vertigo. The examiner also reviewed the prior VA examination and discussion and noted that the medical opinion interpreted the data differently than his medical opinion. He found the Veteran was able to self enroll and take college courses while maintaining full time employment. The examiner did note the Veteran had trouble with algebra initially while he went through a divorce and filed paperwork with the VA stating as much. He also noted that the Veteran stated in August 1983 statement to VA that he intended to pursue a degree and transfer to a four year college, which went against difficulty with concentration, memory difficulty and difficulty carrying out complex and multiple tasks. The examiner pointed out that the Veteran was able to remain gainfully employed for over 35 years and, at one time, he had his own business, which demonstrated a high level of functioning that contradicted persistent postconcussive syndrome. In addition, he found the Veteran was able to stop alcohol abuse due to complex medical issues, which required a high level of reasoning skills, interpretation and concentration and had been able to abstain for 13 years. He noted if the original cause of alcoholism was from a brain injury, it would be difficult to stop for those reasons. The examiner then noted the Veteran's history of cigarette smoke and found both alcohol and tobacco were major contributors ot his arterial sclerosis. He concluded that cognitive disorder, depression, anxiety, vertigo/dizziness, changed attitude, headaches and claimed memory loss were more likely from an adult lifetime history of alcohol dependence, severe financial difficulties, multiple divorces and severe chronic medical problems, mainly cardiac. In a December 2012 VA supplemental opinion, the examiner who performed the April 2012 examination found that there was no new diagnostic, neurologic, psychiatric, or neuropsychiatric treatment since the last examination he conducted in April 2012 that caused him to formulate a different medical opinion than the one he had previously rendered. After a careful review of the evidence of record and resolving all doubt in favor of the Veteran, the Board finds that, throughout the duration of the appeal, including from the date service connection was awarded on November 25, 2008, the Veteran's residuals of a head injury warrant an initial 40 percent disability rating under Diagnostic Code 8045. In this regard, the Board finds that throughout the duration of the appeal, the Veteran's residuals of a head injury have been productive of objective evidence on testing of mild impairment of memory, resulting in mild functional impairment, a level of impairment of 2 for his memory, attention, concentration and executive function facet in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." The Board also observes that all other facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" do not rise to level 2 of impairment or greater. Thus, the evidence of record, when taken as a whole, reveals evidence of mild functional impairment of loss of memory, attention, concentration, or executive functions. As this is described as a level 2 of impairment on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, the assignment of a 40 percent rating for the period on appeal is warranted. Throughout the appeal, the Veteran has described impairment of his memory, attention, and concentration, and has reported subjective symptoms of anxiety, headaches and dizziness. While the Veteran has also complained of tinnitus due to his head injury, the Board observes that he is separately service-connected for tinnitus and assigned the maximum 10 percent rating for this disability, and no further consideration of this symptom as being one of his subjective symptoms under a separate rating code, namely Diagnostic Code 8045, is not appropriate as this would constitute pyramiding. See 38 C.F.R. § 4.14. The Board observes the April 2012 VA examiner attributed the Veteran's cognitive disorder, depression, anxiety, vertigo/dizziness, changed attitude, headaches and claimed memory loss as being due to causes other than the Veteran's residuals of a head injury, however, the April 2009 VA examiner and January 2012 cognitive screening findings both support that the Veteran's cognitive disorder and memory problems are due to the Veteran's past head injury. Specifically, the April 2009 VA examiner diagnosed the Veteran with mild post concussion, with no significant residual signs or symptoms and the January 2012 cognitive screening findings described the Veteran's overall impairment as mild and he was diagnosed with cognitive disorder with risk factors including a history of TBI as well as cognitive difficulties included alcoholism (in remission), coronary heart disease, a family history of dementia, and sleep apnea (now treated). The January 2012 cognitive screen also revealed objective evidence on testing of mild impairment of orientation, verbal memory, and visuospatial orientation and significant impairment of executive functioning and language, however, his MOCA score was at a 21 out of 30, reflecting mild impairment overall. Based on the findings above, there is objective evidence on testing of mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment so as to assign a level 2 of impairment for the Veteran's memory, attention, concentration and executive functions facet. An assignment of level 2 in this facet warrants the assignment of a 40 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board also acknowledges that the April 2009 VA examination report found no complaints of memory problems at the time, however, VA outpatient treatment records reflect the Veteran had complained of memory problems prior to this date and the Board observes that symptoms can fluctuate over time. The record does not support a finding of impairment at a level of 3 or total impairment in any of the 10 facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" so as to warrant a higher disability rating at any time throughout the duration of the appeal. While the January 2012 cognitive screen revealed significant impairment of executive functioning, the Veteran's functional impairment was assessed to be mild overall, and therefore did not result in moderate or severe functional impairment so as to warrant a higher rating. Despite the January 2012 cognitive screen findings of mild impairment of orientation, and visuospatial orientation and significant impairment of language, the Veteran was assessed overall with mild impairment and was not found to be often disoriented, moderately or severely impaired visuospatial orientation or having an inability to communicate at least half the time or rely on gestures as would indicate a level 3 of impairment in either of these facets so as to assign a higher disability rating under Diagnostic Code 8045. In addition, the April 2009 and April 2012 VA examinations did not reveal any findings of moderate or severe impairment, inappropriate social interaction, an inability to communicate or a total altered state of consciousness so as to warrant a higher disability rating under Diagnostic Code 8045. In fact, the April 2009 VA examination revealed findings of: normal judgment, motor activity, visual spatial orientation, and consciousness; no complaints of impairment of memory, attention, concentration or executive functions; routinely appropriate social interaction; orientation to person, time, place and situation; subjective symptoms which did not interfere with work, instrumental activities of daily living, or work, family or other relationships; one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction, although no specific neurobehavioral effect was noted; and the ability to communicate by spoken and written language and able to comprehend spoken and written language. The April 2012 VA examination revealed findings of: complaints of mild memory loss, attention, concentration or executive functions, but without objective evidence on testing; normal judgment, motor activity, visual spatial orientation and consciousness; routinely appropriate social interaction; always oriented to person, time, place and situation; three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family or other close relationships; no neurobehavioral effects; the ability to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language; and no additional subjective symptoms, physical or neurological conditions, or residuals attributable to TBI. Neither the Veteran nor his attorney specifically argued for a total rating based on cognitive dysfunction. Rather it appears, per a May 2012 statement, that the Veteran's attorney sought the assignment of a 40 percent disability rating based on his arguments that the Veteran met the level 2 impairment in several facets, including memory, orientation and subjective symptoms. The Board observes that the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing or witnessing memory problems, etc. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the statements provided by the Veteran regarding the effects of his current residuals of a head injury on his daily life are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). Accordingly, Board concludes that throughout the period of the appeal, from November 25, 2008, the Veteran's residuals of a head injury warrants an initial disability rating of 40 percent, but no higher. 38 C.F.R. §§ 3.102, 4.3 (2012). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Overall, there exists no basis under the schedular criteria for an increased rating in excess of 40 percent for this disability. 38 C.F.R. §§ 4.3, 4.7 (2012). Extraschedular Consideration The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology and provides for ratings higher than those assigned based on more significant functional impairment. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). This Diagnostic Criteria not only account for cognitive and other residuals of TBI, including subjective symptoms and their effects, the rating code also provides that assignment of separate disability ratings for other residuals that are physical, emotional/behavioral, neurological or mental in nature that may also be appropriate. In addition, the criteria provide for several facets of both cognitive and other impairment due TBI residuals and provide higher ratings for whichever of the 10 facets is evaluated at the highest level based on several factors determining the actual level of impairment within each facet. See id. This matter was implicitly considered and rejected by the RO. See Statement of the Case, dated November 2009 citing 38 C.F.R. § 3.321(b)(1). Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating of 40 percent for residuals of a head injury is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs