Citation Nr: 1325727	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  08-10 770	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for PTSD.

3.  Entitlement to a disability rating in excess of 50 percent for post-concussion syndrome with cognitive disorder.

4.  Entitlement to an initial disability rating in excess of 10 percent for post-concussion headaches.

5.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Flynn, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from June 1979 to September 1981.

These matters come before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the above Regional Office (RO) of the Department of Veterans Affairs (VA).  A February 2007 rating decision denied service connection for PTSD, continued the evaluation of the Veteran's post-concussion syndrome at 50 percent disabling, and denied a TDIU.  A December 2008 rating decision granted service connection for the Veteran's post-concussion headaches and assigned an initial 10 percent rating, effective as of October 17, 2007.  Though the Veteran did not submit a notice of disagreement as to this December 2008 decision, the Board notes that the Veteran's original appeal sought appropriate compensation for his post-concussion syndrome generally, including headaches.  The Board therefore treats the issue of an increased disability rating for headaches to be in appellate status because the current 10 percent initial rating does not represent the highest possible benefit, as will be discussed in further detail below.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  

In October 2010, the Board remanded the claims in order to obtain the Veteran's records from the Social Security Administration (SSA).  As will be discussed in further detail below, the Board finds that there has been substantial compliance with its remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

The issues of entitlement to an increased initial rating for headaches associated with post-concussion syndrome with a cognitive disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, D.C.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  In an unappealed October 2001 rating decision, VA denied the Veteran's claim of entitlement to service connection for PTSD.

2.  The evidence received since the October 2001 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for PTSD.

3.  The competent evidence of record does not support a finding that the Veteran has PTSD as the result of an in-service stressor.

4.  From January 3, 2009 to August 12, 2009, post-concussion syndrome with cognitive disorder is manifested by symptoms producing no more than occupational and social impairment with deficiencies in most areas, due to intermittently obscure and irrelevant speech, impaired impulse control, and difficulty in adapting to stressful circumstances.

5.  From October 15, 2010 to November 2, 2010, post-concussion syndrome with cognitive disorder is manifested by symptoms producing total occupational and social impairment due to a persistent danger of self-harm and an intermittent inability to perform activities of daily living.

6.  Otherwise, post-concussion syndrome with cognitive disorder is manifested by symptoms producing no greater than level 2 impairment in at least one facet of cognitive impairment; such symptoms do not produce occupational and social impairment with deficiencies in most areas.


CONCLUSIONS OF LAW

1.  The October 2001 rating decision denying the claim of entitlement to service connection for PTSD is final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000).

2.  New and material evidence has been received sufficient to reopen the claim of service connection for PTSD.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2012).

3.  The Veteran does not have PTSD as a result of active service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

4.  Prior to January 3, 2009, the criteria for a disability rating in excess of 50 percent for post-concussion syndrome with cognitive disorder have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2007); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2012).

5.  From January 3, 2009 to August 12, 2009, the criteria for a disability rating of 70 percent, but no greater, for post-concussion syndrome with cognitive disorder have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2012).

6.  From August 13, 2009 to October 2010, the criteria for a disability rating in excess of 50 percent for post-concussion syndrome with cognitive symptoms have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2007); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2012).

7.  From October 15, 2010 to November 2, 2010, the criteria for a disability rating of 100 percent for post-concussion syndrome with cognitive disorder have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2012).

8.  From November 3, 2010, the criteria for a disability rating in excess of 50 percent for post-concussion syndrome with cognitive disorder have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2007); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims decided herein.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Duties to Notify and Assist

The Veteran's claim for service connection for PTSD has been reopened.  As such, the Board finds that any error related to the Veterans Claims Assistance Act of 2000 (VCAA) with regard to this claim to reopen is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

With respect to the Veteran's other claims decided herein, the Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012).

Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See id. at 486.  Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  In the instant case, correspondence dated May 2006 and August 2008 provided all appropriate notification to the Veteran.  The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary.

With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits decided herein.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  The Veteran's service treatment records, post-service private and VA medical records, and records from the SSA have been obtained, to the extent available.  

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 (2007).  The Veteran has been provided with examinations of his conditions.  The examiners reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board finds that the examinations of record are adequate for the purpose of making a decision.  38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Neither the Veteran nor his representative has contended otherwise.

In March 2010, the Veteran presented testimony before the undersigned, and a transcript of this hearing is of record.  The Board finds that there is no indication in the record that any additional relevant evidence is available and not part of the claims file, and it is not contended otherwise.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Thus, the duties to notify and assist have been met, and the Board will proceed to a decision.

New and Material Evidence to Reopen

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2012).  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  See 38 U.S.C.A. § 5108 (West 2002).  If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition.  See id.; see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156 (2012); Smith v. West, 12 Vet. App. 312, 314 (1999) (noting that if the evidence is new but not material, the inquiry ends and the claim cannot be reopened.)

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (noting that when determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of a witness.)  While credibility is to be presumed, lay statements offering medical opinions cannot provide a basis on which to reopen a claim for service connection.  See Moray v. Brown, 5 Vet. App. 211 (1993); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (stating that "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108.")

If it is determined that new and material evidence has been submitted, the claim must be reopened.  VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminating the concept of a well-grounded claim).

Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  The Board also notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a "low" one.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

Turning to the facts in the instant case, the Veteran's claim of entitlement to service connection for PTSD was last finally denied in an October 2001 rating decision.  In that decision, the RO found that the Veteran had not submitted evidence demonstrating that he had been diagnosed with PTSD.  The Veteran did not appeal the decision, and the rating decision became final.  See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 3.104, 20.302, 20.1103 (2000).

The Board must first determine if new and material evidence has been submitted since the time of the October 2001 rating decision.  See 38 U.S.C.A. § 5108 (West 2002).  Additional medical evidence has been submitted suggesting that the Veteran has a current diagnosis of PTSD.  For example, an April 2009 VA treatment record stated that the Veteran "does have PTSD."  A November 2009 medical record indicated that the Veteran had a diagnosis of "suspected PTSD."  This evidence is new because it has not previously been submitted to VA.  

Regarding the materiality of the newly-submitted evidence, the Veteran's previous claim for service connection was denied because the evidence did not indicate that the Veteran suffered from PTSD.  The newly-submitted evidence indicates that the Veteran may have such a diagnosis, and it thus relates to an unestablished fact necessary to substantiate the claim.  As new and material evidence has been received, the claim for service connection for PTSD is reopened.

Service Connection

The Veteran contends that he suffers from PTSD as a result of his active duty military service.  As an initial matter, the Board notes that both at the Veteran's March 2010 hearing and in the Board's October 2010 Remand, the Board advised the Veteran that even if his claimed PTSD were to be service connected, such a grant would not result in a greater level of compensation to the Veteran.  As will be discussed in further detail below, all of the Veteran's psychiatric symptoms are evaluated as part of the Veteran's rating for service-connected post-concussion syndrome.  In that regard, the Board notes that the evaluation of the same disability under various diagnoses is to be avoided, and the evaluation of the same manifestations under different diagnoses, a practice known as "pyramiding," is to be avoided.  See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).  Providing a compensable evaluation of the Veteran's PTSD would constitute pyramiding.  Notwithstanding this advice, the Veteran indicated at his hearing before the undersigned that he still wished to pursue the claim for service connection for PTSD.

Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  More specifically, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between current symptoms and an in-service stressor.  38 C.F.R. § 3.304(f) (2012).  Turning to the facts in the instant case, the Veteran was hit in the head with a hammer while on active duty service in July 1981.  The second element required to support a claim for PTSD, an in-service stressor, is met.  

Despite meeting this element, the Board finds that the weight of the probative evidence does not support a conclusion that the Veteran has PTSD that is linked to this stressor. In January 2007, a VA examiner found that the Veteran did not meet the re-experiencing criteria associated with PTSD.  The examiner further noted that the Veteran did not report chronic hypervigilance or enhanced startle response.  The examiner concluded that it was clear that the Veteran did not meet the diagnostic criteria for PTSD.  In January 2009, C.P.H., a private psychologist, indicated that the Veteran had PTSD.  C.P.H. did not clearly link the Veteran's PTSD to his military service, but the entirety of the report of C.P.H. could be read as drawing such a connection.  An April 2009 VA clinical record noted that the Veteran had PTSD.  A November 2009 clinician noted that the Veteran had "suspected" PTSD.  In August 2009, a VA examiner diagnosed the Veteran with cognitive disorder NOS (not otherwise specified) (post-concussional disorder) and not PTSD.  In February 2011, a VA examiner found, consistent with the previous VA examinations, that the Veteran did not meet the diagnostic criteria for PTSD.  The examiner noted that the Veteran did not spontaneously report any re-experiencing or specific avoidance symptoms.  The examiner also discounted the opinion of C.P.H. suggesting that the Veteran had PTSD, noting accurately that the report of C.P.H. did not include an analysis of the Veteran's symptoms in support of such a diagnosis.

The Board acknowledges both that C.P.H. concluded that the Veteran had PTSD and that some VA clinicians have stated that the Veteran had PTSD.  In no case, however, has a diagnosis of PTSD been accompanied by a discussion of the specific symptoms that support such a diagnosis.  Instead, the diagnoses with PTSD simply make conclusory statements, such as, in the case of the April 2009 clinician, "the Veteran does have PTSD" without further rationale.  The Board affords these opinions relatively little probative weight, and it instead affords the opinions of the VA examiners, who consistently failed to find evidence supporting a diagnosis of PTSD, with great probative weight.  The VA examiners extensively reviewed the Veteran's claims file and symptomatology before determining that his symptoms did not support a diagnosis of PTSD.

To the extent that the Veteran himself believes that he suffers from PTSD that is related to military service, the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing psychiatric symptoms such as anxiety and depression).  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

With this said, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, namely, the diagnosis and etiology of PTSD, the issues of diagnosis and causation of such an ailment are a determination outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran has PTSD as a result of his military service, the Board ultimately affords the weight of the objective medical evidence of record, which fails to find a connection between the Veteran's conditions and his military service, with greater probative weight than the lay opinions of record. 

In light of the above, the Board finds that the probative evidence of record does not demonstrate that the Veteran has PTSD that is related to his active duty military service.  In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The benefit sought on appeal is accordingly denied.
 
Increased Rating - Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Separate rating codes identify the various disabilities.  See 38 C.F.R. Part 4 (2012).  When 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.  See 38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  See 38 C.F.R. § 4.3 (2012).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  See Fenderson v. West, 12 Vet. App. 119 (1999).  

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  As noted above, pyramiding-the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities.  See 38 C.F.R. § 4.14 (2012).

Turning to the history of the Veteran's ratings in the instant case, an October 1982 rating decision granted the Veteran service connection for post-concussion syndrome with a 10 percent initial disability rating under Diagnostic Code 8045-9304.  A hyphenated diagnostic code indicates that a rating under one code requires use of an additional code to identify the basis for the assigned evaluation.  See 38 C.F.R. § 4.27 (2012).  Diagnostic Code 8045 applies to brain disease due to trauma, and Diagnostic Code 9304 applies to dementia due to head trauma.  A March 1999 rating decision continued the 10 percent disability rating.  An October 2001 rating decision found that the Veteran suffered from a cognitive disorder as a result of his post-concussion syndrome, and it continued the existing 10 percent disability rating.  The October 2001 rating decision changed the applicable Diagnostic Code from 8045-9304 to 8018-9304.  Diagnostic Code 8018 is applicable to multiple sclerosis.  

The Veteran appealed the March 1999 rating decision to the Board, and in an October 2002 decision, the Board increased the disability evaluation to 50 percent under Diagnostic Code 8045-9304.  The Veteran submitted the instant claim for an increased rating in February 2006.  A February 2007 rating decision continued the 50 percent disability rating under Diagnostic Code 9304.  A December 2008 rating decision awarded the Veteran with a separate 10 percent disability rating under Diagnostic Code 8199-8100.  Diagnostic Code 8199 is used to identify miscellaneous diseases of the central nervous system that are not specifically listed in the schedule but that are instead rated by analogy to similar disabilities.  See  38 C.F.R. §§ 4.20, 4.27, 4.71a (2012).  Diagnostic Code 8100 applies to migraine headache.

Turning now to a discussion of the pertinent rating criteria, the criteria for rating traumatic brain injury (TBI) were revised during the pendency of this appeal.  See 73 Fed. Reg. 54,693 (Sept. 23, 2008).  The effective date for these revisions is October 23, 2008.  See 38 C.F.R. § 4.124, Note (5) (2012).  For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008 but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008.  The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating.  See VBA Fast Letter 8-36 (October 24, 2008). 

Before October 23, 2008, Diagnostic Code 8045 provided that purely neurological disabilities such as hemiplegia, epileptiform seizures, and facial nerve paralysis, were to be rated under the Diagnostic Codes specifically dealing with such disabilities, with the use of a hyphenated diagnostic code, as discussed above (for example, 8045-8911).  Purely subjective complaints such as headache, dizziness, insomnia, recognized as symptomatic of brain trauma, were to be rated as no greater than 10 percent disabling under Diagnostic Code 9304.  This 10 percent rating was not to be combined with any other rating for disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable absent a diagnosis of multi-infarct dementia associated with brain trauma.  See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008).  When multi-infarct dementia associated with brain trauma was shown, the following rating criteria from the General Rating Formula for Mental Disorders, applied, in pertinent part:

50 percent: 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; and difficulty establishing effective work and social relationships.

70 percent: 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 that 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 work-like setting); and an inability to establish and maintain effective relationships.

100 percent: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or 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 and place; memory loss for names of close relatives, own occupation or name.

38 C.F.R. § 4.130, Diagnostic Code 9304 (2012).

The Board notes that the specified factors for each incremental rating are examples-rather than requirements-for a particular rating, and the Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating scheme.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) score assigned to the Veteran, which is a scale that reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  While a veteran's GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when evaluating the appropriate disability rating for the veteran.  See VAOPGCPREC 10-95.  A description of the relevant GAF ranges is as follows:

GAF scores ranging from 21 to 30 reflect behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (such as sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (such as stays in bed all day, no job, home, or friends). 

GAF scores ranging from 41 to 50 reflect serious symptoms (such as suicidal ideation, severe obsessional rituals, or frequent shoplifting) or any serious impairment in social, occupational, or school functioning (such as a person who has no friends and is unable to keep a job).

GAF scores ranging from 51 to 60 reflect moderate symptoms (such as flat affect and circumstantial speech, or occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (such as few friends or conflicts with peers or co-workers).

DSM-IV, pp. 46-47; see also 38 C.F.R. § 4.130 (2012) (incorporating by reference the provisions of the DSM-IV for rating purposes).

As of October 23, 2008, Diagnostic Code 8045 provides for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation.  See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012).

Cognitive impairment involves decreased memory, concentration, attention, and executive functions of the brain.  The term "executive functions" includes goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when such actions are not productive.  Cognitive impairment is evaluated according to the table entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 

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 entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."  Any residual with a distinct diagnosis, however, may be evaluated under another diagnostic code, 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.  When, as in the instant case, there is a diagnosis of a mental disorder, emotional/behavioral dysfunction is to be evaluated under the General Rating Formula for Mental Disorders set forth above.  

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. 

The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI.  Residuals not listed above that are reported on an examination report are to be evaluated under the most appropriate diagnostic code.  Each condition shall be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and each separately rated condition shall be combined under 38 C.F.R. § 4.25.  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. 

The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 facets of TBI related to cognitive impairment and subjective symptoms.  These 10 facets are as follows: (I) Memory, attention, concentration, and executive function; (II) Judgment; (III) Social interaction; (IV) Mental orientation; (V) Motor activity (impact on motor and sensory systems); (VI) Visual and spatial orientation; (VII) Subjective symptoms; (VIII) Neurobehavioral effects; (IX) Communication; and (X) Consciousness.

This table provides criteria for levels of impairment for each facet, ranging from 0 to 3, and a fifth level, the highest level of impairment, labeled "total."  A 100 percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets.  If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: if the highest facet is 0, then a 0 percent evaluation applies; if the highest facet is 1, then a 10 percent evaluation applies; if the highest facet is 2, then a 40 percent evaluation applies; if the highest facet is 3, then a 70 percent evaluation applies.  For example, a 70 percent evaluation is to be assigned if 3 is the highest level of evaluation for any facet. 

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 co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, VA cannot assign more than one evaluation based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, VA is to assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  If, however, the manifestations are clearly separable, VA is to assign a separate evaluation for each condition.  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. 

The term "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. 

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. 

Facts and Analysis Prior to October 23, 2008

The Veteran claims that he is entitled to a disability rating in excess of 50 percent for his post-concussion psychiatric symptoms.  

Turning to the facts in the instant case, a February 2005 VA treatment note indicates that the Veteran's speech was clear, he was not depressed, and he denied suicidal or homicidal ideation.  In March 2005, the Veteran complained of difficulty with his memory.  The Veteran was dressed casually and neatly, appeared anxious, related well, and made good eye contact.  The Veteran's speech was clear and goal-directed, and he denied feelings of helplessness or hopelessness.  The Veteran denied experiencing thoughts of harming himself or others, hallucinations, paranoia, anxiety, racing thoughts, difficulty with concentration, or difficulty with appetite.  The Veteran had good insight and judgment, but he stated that he had intrusive thoughts of his in-service injury.  The examiner diagnosed the Veteran with depressive disorder, cognitive disorder, r/o major depression, r/o organic affective disorder secondary to head injury, r/o bipolar disorder, and r/o intermittent explosive disorder.  The examiner assigned the Veteran with a GAF score of 55.  

In April 2005, the Veteran had a labile affect, but his speech was clear and goal-directed.  The Veteran indicated that he was a "little" anxious, but he denied feeling helpless or hopeless.  The Veteran stated that he experienced angry outbursts, but he denied experiencing impulsive thoughts or thoughts of hurting himself or others.  The clinician assigned a GAF score of 55-60.  In a later April 2005 record, the Veteran reported that he had recently entered into a romantic relationship.  An August 2005 clinician assigned the Veteran with a GAF score of 60.  

A February 2006 VA clinician assigned the Veteran with a GAF score of 55-60.  In March 2006, the Veteran reported that he had recently been involved with a physical altercation with an acquaintance.  The Veteran showed anger, hypervigilance, and intrusive thoughts.  In April 2006, the Veteran again reported experiencing hypervigilance and verbal flare-ups of anger.  The Veteran reported having problems sleeping, but he denied suicidal or homicidal ideation.  In a separate April 2006 treatment record, the Veteran reported that he lived alone and had a long-distance relationship.  The Veteran reported feeling hypervigilant and easily-startled.  The Veteran was alert, and his affect was labile.  The Veteran became irritated easily, his speech was pressured, he was impulsive, and he had racing thoughts.  The Veteran denied experiencing audiovisual or command hallucinations, compulsions, or obsessions.  The Veteran indicated that he sometimes felt sad, depressed, and helpless.  

The Veteran received a VA examination in May 2006.  The Veteran reported that he lived alone.  The Veteran reported that he experienced problems with memory and anger since the time of his 1981 in-service injury.  Neurologically, the examiner found the Veteran to be alert and oriented, and he walked with a steady gait.  The Veteran had no limp or antalgia, and his tandem walking was steady.  Romberg's test was negative, and the Veteran was able to balance on his toes and heels.  The Veteran's proprioception was intact bilaterally.  The Veteran's heel-to-shin was intact, as was his finger-to-nose.  The Veteran had 5/5 muscle function and strength in the upper and lower extremities.  Deep tendon reflexes in the upper and lower extremities were +1 to +2.  Cranial nerves II-XII were intact.  The Veteran was normocephalic and atraumatic.  The Veteran's pupils were equal, round, and reactive to light.  Extra-ocular motions were intact, and the red reflex was intact.  The Veteran indicated that he previously had left-sided weakness, but such condition had completely resolved.  The Veteran's mood was frustrated, he spoke in a pressured tone, and he became "weepy" towards the end of the examination.  The Veteran was hypervigilant, unable to sleep, and angry.  The Veteran showed limited, if any, insight into the nature of his conditions.  

In May 2006, the Veteran reported that he had a girlfriend, and he was considering moving in with her.  The Veteran reported having flare-ups of anger and a fear of others harming him.  In December 2006, the Veteran reported experiencing mild depression and fatigue, but he denied experiencing suicidal ideation.  The Veteran's demeanor was "significantly calmer" than in the past, which the Veteran attributed to his psychiatric medication.  The Veteran reported having a "somewhat improved" relationship with his brother and mother.  The Veteran continued to experience nightmares relating to his assault.  

In January 2007, a VA clinician noted that the Veteran's affect was labile and his speech was pressured.  The Veteran indicated that he occasionally experienced racing thoughts, but he denied experiencing hallucinations or feelings of helplessness or hopelessness.  The clinician assigned the Veteran with a GAF score of 60.  In August 2007, the Veteran reported that he sometimes had fleeting suicidal thoughts but had no plans to hurt himself.  The Veteran indicated that his mind sometimes raced, but he denied experiencing manic or hypomanic symptoms.  The clinician assigned the Veteran with a GAF score of 55-60.  In a separate August 2007 treatment record, the Veteran reported experiencing significant depression.   The Veteran reported experiencing thoughts that "he might as well be dead."  The Veteran clarified that he would never harm himself, and he denied experiencing anger or homicidal ideation.  

A March 2008 social work note indicated that the Veteran was alert, oriented, and agitated.  The Veteran was tearful, grieving a break-up with his former girlfriend, and he attempted to remain friends with her after they broke-up.  The Veteran had symptoms of depression and focused on the loss of his two-year relationship with his girlfriend.  The Veteran denied experiencing suicidal thoughts.  The social worker assigned the Veteran with a GAF score of 55.  In April 2008, a VA social worker observed that the Veteran was alert and oriented, and the clinician observed the Veteran had some "word finding" when speaking.  The Veteran denied experiencing suicidal thoughts.  The clinician assigned the Veteran with a GAF score of 55.  

In June 2008, the Veteran indicated that his headaches had worsened in severity.  The Veteran indicated that his mood was "good," and he denied anxiety.  The Veteran denied having any contact with his ex-girlfriend.  The Veteran was alert and oriented, and he denied experiencing hallucinations or delusions.  The social worker assigned the Veteran with a GAF score of 55.  An October 2008 neurological examination found that the Veteran suffered from mild upper motor neuron and cerebellar-type weakness and incoordination in the left upper extremity that was more likely than not due to a progression of the Veteran's multiple sclerosis than due to the Veteran's head injury.  

Turning now to an application of the relevant laws and regulations to the facts in the instant case, as an initial matter, the Veteran's post-concussion syndrome is manifested exclusively by headaches and psychiatric symptoms.  The Veteran has been denied service connection for other symptoms that the Veteran has related to his in-service head injury.  A September 1999 rating decision denied service connection for left-sided paralysis, a left eye condition, and tremors.  An August 2000 rating decision denied service connection for multiple sclerosis.  A December 2008 rating decision denied service connection for left hand tremors and weakness.  Medical care providers have consistently failed to find a connection between these symptoms and the Veteran's post-concussion syndrome, and such symptoms will therefore not be considered in this decision.

The Board first observes that a 100 percent evaluation is not warranted at any time before October 23, 2008.  The Veteran's symptoms during this time do not create total occupational and social impairment.  The Veteran had a close relationship with his mother during this time, and she often accompanied him to his medical appointments.  The Veteran otherwise enjoyed the company of other family members, including his brother, and he occasionally had a girlfriend.  While mindful of the guidance from Mauerhan that the symptoms listed in the General Rating Formula for Mental Disorders are not meant to be used as an exhaustive list, the Board observes that the Veteran has not met or approximated any of the listed symptoms for a 100 percent rating.  For these reasons, the Board finds that a 100 percent rating of the Veteran's symptoms is not appropriate.

The Board further observes that a 70 percent evaluation is not warranted at any time before October 23, 2008.  The Veteran's symptoms during this time do not create occupational and social impairment with deficiencies in most areas.  As noted above, the Veteran has maintained and initiated relationships during this time.   While the Board is again mindful of not using the General Rating Formula for Mental Disorders as a checklist, it notes that the Veteran's symptoms arguably meet or approximate only two of these symptoms.  The Veteran arguably showed impaired impulse control, complaining in April 2005 of experiencing "angry outbursts," and becoming involved in a physical altercation with an acquaintance in March 2006.  The Veteran has also arguably shown difficulty in adapting to stressful circumstances; for example, the Veteran stated on several occasions that he continued to mourn the break-up of his relationship with a former girlfriend.  

The Board finds that the evidence does not support a finding that the Veteran has the other symptoms associated with a 70 percent rating.  Though the August 2007 examiner noted the Veteran's "fleeting" suicidal thoughts, the examiner also noted that the Veteran had no active plan of suicide.  The Veteran otherwise consistently denied suicidal or homicidal ideation.  The records do not indicate the Veteran's activities of daily living were compromised by near-continuous panic or depression.  For these reasons, the Board finds that a 70 percent rating of the Veteran's service-connected cognitive disorder is not appropriate.

Instead, after a thorough review of the evidence, the Board finds that the totality of the evidence indicates that the impact of the Veteran's post-concussion syndrome on his social and industrial functioning is most congruent with the currently-assigned 50 percent evaluation.  Although the Veteran does not have all the symptomatology consistent with the assignment of a 50 percent rating, the Board finds that the impact of the Veteran's post-concussion syndrome on his social and occupational functioning sufficiently approximates the degree of impairment contemplated by a 50 percent rating.  See 38 C.F.R. § 4.7 (2012).  The Veteran has consistently complained of difficulty with his memory, and he has consistently shown disturbances of motivation and mood consistent with anxiety and depression.  The Board finds that a 50 percent rating for the Veteran's post-concussion syndrome is warranted for the period prior to October 23, 2008.

In making this determination, the Veteran's GAF scores of record have been considered.  During the period from the date of the Veteran's claim until October 22, 2008, the Veteran was assigned GAF scores ranging from 55 to 60, which are indicative of "moderate" symptoms.  The Board finds that the Veteran's "moderate" symptoms are most congruous with the currently-assigned 50 percent disability rating based on disturbances of motivation and mood with associated difficulty in establishing and maintaining effective work and social relationships.

Consideration has also been give to the Veteran's personal assertions in support of his claim.  The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as feelings of pain, stress, anxiety, and depression.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2).  However, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his psychiatric conditions in terms of the applicable rating criteria and its effect on his ability to work.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).   Rather, such a finding necessarily requires appropriate medical findings regarding the extent and nature of his psychiatric disorder.  The clinical evidence of record does not indicate that the assignment of an increased evaluation for post-concussion syndrome with cognitive disorder is warranted.  

Facts and Analysis On and After October 23, 2008

In January 2009, the Veteran underwent a mental status examination in conjunction with his claim of entitlement to SSA benefits.  The Veteran was casually but neatly dressed.  The Veteran indicated that he had recently experienced high tensions, and he was talkative and anxious.  The Veteran's appropriateness was suspect, with the psychologist noting that the Veteran had called her multiple times before the examination; contrarily, the examiner also noted that the Veteran's impulse control was "good."  The Veteran indicated that he experienced hallucinations in the form of "paranoid thoughts about someone coming up behind me," but he denied experiencing panic attacks.  The Veteran could generate thoughts, feelings, and ideas, but he also digressed and had to be redirected.  When asked whether he suffered from obsessions and compulsions, the Veteran indicated that he was "particular about [his] work and [his] hygiene."  The Veteran did not have the capability for abstract reasoning, and his intelligence was below-average.  The Veteran was oriented to person, time, and place, but he had a memory recall problem that would negatively affect his daily activities.  The Veteran's anxiety, anger, and other personality problems would have a negative effect on his social judgment.  The Veteran had some insight into his problems.  The psychologist found that the Veteran seemed truthful and straightforward with his answers.  The examiner assigned the Veteran with a GAF score of 42.  

In April 2009, the Veteran's mother accompanied him to a psychiatric appointment, at which time he was alert and oriented.  The Veteran's mother reported that the Veteran had become more irritable in the past six to nine months.  The Veteran denied suicidal or homicidal ideation, but he endorsed having thoughts of fighting with other people.  The clinician observed mild pressure of speech and tangentiality.  The Veteran's mood was mildly dysthymic, and the Veteran endorsed having auditory hallucinations.  The clinician diagnosed the Veteran with mixed bipolar disorder.  Later in April 2009, the Veteran was "extremely agitated" during a VA social work appointment, and the Veteran's mother reported that the Veteran had engaged in erratic and threatening behavior, and increased spending.  The Veteran stated that he heard voices.  The social worker indicated that the Veteran seemed to have "no boundaries" with strangers in conversation, and conversation was often inappropriate.  The Veteran's mother described him as having manic, psychotic, irrational thoughts.  The Veteran agreed to undergo in-patient psychiatric care.  

In May 2009, the Veteran's mother indicated that the Veteran had been "manic," talking a lot, and spending money that he did not have.  The Veteran's mother indicated that he was aggressive, angry, and became upset easily.  The clinician assigned the Veteran with a GAF score of 60.  In June 2009, a VA social worker noted that the Veteran had high energy, an inappropriate affect, agitation, pressured speech, poor judgment, and racing thoughts.  The Veteran's hygiene and dress were good.  The social worker indicated that the Veteran's functioning had declined significantly, as witnessed by behavior such as pounding his fists on the wall, banging his head on the desk, shouting, standing up frequently, swearing, and becoming easily angered and frustrated, and more manic-type symptoms in general.  The social worker indicated that the Veteran had experienced road rage with police involvement, impulsive spending, poor anger management, increased head pain, severe mood swings, yelling, poor judgment, and worries about his future.  The Veteran denied suicidal ideation, homicidal ideation, or psychosis.  The Veteran was oriented.  

In July 2009, the Veteran was alert and oriented to person, time, and place, and he denied suicidal or homicidal ideation.  In a July 2009 therapeutic note, the Veteran was alert, dressed casually, related well, made good eye contact, was a little anxious, and had a labile affect.  The Veteran's speech was pressured.  The Veteran denied experiencing audiovisual or command hallucinations.  The clinician assigned the Veteran with a GAF score of 55-60.  A July 2009 neurological examination report indicated that the Veteran was alert and attentive, and his speech was fluent.  In an August 2009 neurology note, the examiner observed the Veteran to be less irritable and angry than he had been previously, but the examiner noted that the Veteran still debated with his mother frequently.  

In an August 13, 2009 TBI examination, the examiner indicated that the Veteran's head trauma met the criteria for a mild TBI, and the Veteran's condition was stable, given the length of time that had elapsed since the initial injury.  The Veteran denied experiencing dizziness or vertigo.  The Veteran indicated that he had weakness in his left hand that may have somewhat improved; this weakness had been attributed to the Veteran's multiple sclerosis.  The Veteran denied experiencing problems with sleep or fatigue; instead, the Veteran stated that he felt energetic.  The Veteran denied experiencing malaise, problems with mobility, or problems with balance.  The Veteran needed no devices to assist with walking.  

The Veteran reported having mild memory difficulties, and mild difficulties with decreased attention and concentration.  The Veteran reported experiencing significant mood swings and irritability.  The Veteran denied experiencing physical aggression, but he reported having occasional verbal outbursts that were more "under control" than in the past.  The Veteran denied experiencing depression or anxiety.  The Veteran denied problems with executive functioning.  The Veteran denied problems with swallowing, and his speech was normal without evidence of aphasia or paraphasic error.  The Veteran's speech was mildly dysarthric, but the examiner observed that the Veteran had a hard candy in his mouth throughout the interview.  The Veteran denied having any bowel problems, bladder problems, erectile dysfunction, or pain other than headaches.  

The Veteran felt occasional tingling in his hands.  The Veteran wore glasses for reading, but he otherwise denied experiencing visual problems.  The Veteran denied experiencing hearing problems or tinnitus.  The Veteran reported having a normal sense of taste and smell.  The Veteran had experienced seizures and occasional mild sensitivity to light.  The Veteran experienced irritability and restlessness.  The Veteran denied symptoms of autonomic dysfunction, such as heat intolerance or excess or decreased sweating.  No other symptoms were observed, such as symptoms of endocrine dysfunction or cranial nerve dysfunction.  The examiner observed that the Veteran's only TBI treatment was for post-traumatic headaches.  The examiner indicated that the Veteran's symptoms of irritability and mood swings might have some impact on his interpersonal interactions with others.  Along with cognitive difficulties, these symptoms had some impact on the reliability and productivity of the Veteran's occupational functioning.

Upon physical examination, the Veteran's muscle strength, muscle tone, and muscle bulk were normal, but increased leg tone was observed on the left side.  Normo-active muscle stretch reflexes were 0/4 throughout, except for +2/4 at the left knee and ankle.  No pathological reflexes were observed.  Sensory function was normal to position, vibration, cold, position, light touch, and double simultaneous stimulation.  No areas of abnormal sensory function were identified.  The Veteran demonstrated a moderate wide-based but stable gait, and he had mild difficulty with tandem gait.  The Veteran showed reduced alternating motion rates at the left fingers and feet.  The examiner noted bilateral action-postural tremulousness in the upper extremities.  The Veteran could not hop on either foot.  The Veteran demonstrated normal walking on heels and toes, and heel-knee-shin was normal.  No fasciculation was noted.  There was no evidence of autonomic nervous system dysfunction.  The Veteran demonstrated a left lateral gaze rotary nystagmus, and mild dysarthria was noted.  Otherwise, the cranial nerves were without evidence of abnormality.  The Veteran did not have papilledema.  

The examiner noted that the Veteran's pre-morbid general intellectual abilities fell in the low-average range, his fund of verbal information fell in the low-average range, and his processing speed was slowed.  The Veteran's span of auditory attention and concentration fell in the low-average range, and his complex divided auditory attention fell in the borderline range.  Visuospatial attention and concentration were grossly intact.  Mild difficulties in sustained attention were observed, and verbal memory difficulties were noted.  The Veteran showed most difficulty in encoding new information, but the Veteran managed to retain most of the information that he encoded.  The Veteran's performance on recognition tasks indicated primarily retrieval difficulties.  Visual (non-verbal) memory difficulties were noted.  The Veteran's recall reproduction of a complex geometric figure was notable for a significant loss of figure detail.  

The Veteran's receptive language abilities were intact.  Semantic verbal fluency fell in the low-average range.  Confrontational naming fell in the average range.  Basic visual perception and visuospatial perception were intact.  Visual organization was intact.  Constructional skills were intact but notable for general sloppiness.  There was no evidence of unilateral neglect.  Psychomotor speed was slowed.  Simple hand motor speed was significantly slowed on a finger-tapping test.  Unimanual motor programming was slowed bilaterally.  Bimanual motor programming was intact.  Executive function performance was variable.  Simple numeric and alphanumeric sequencing abilities were generally intact, but they were hampered by slowed processing speed.  Cognitive flexibility was grossly intact.  Difficulties were noted in concept formation.  The Veteran exhibited difficulty in remaining focused and on task during a complex card-sorting test.  The Veteran did not demonstrate impulsiveness.  

The Veteran arrived to his appointment on-time and was accompanied by his mother.  The Veteran's grooming was adequate, and he appeared to be his stated age.  The Veteran was alert and oriented during the interview.  The Veteran's eye contact was somewhat poor, and the Veteran tended to look away when directly questioned.  The Veteran's mood appeared euthymic and his affect was irritable.  The Veteran reported verbal aggressiveness, but he denied physical aggression.  The Veteran described his appetite and sleep as "fine."  The Veteran ruminated on his perception that VA was treating him unfairly and that he deserved more money.  The Veteran's though content was not delusional, but the Veteran had some feelings of paranoia.  Though the Veteran complained of significant memory problems, the Veteran was easily able to access and recall recent historical information in detail during the interview.  The Veteran denied hallucinations, and no obvious word-finding difficulties were noted.  The examiner found that the results obtained during the examination were an underestimation of the Veteran's cognitive functioning.

The examiner found that the Veteran had mild impairment of memory, attention, concentration, and executive functioning.  The Veteran's judgment was normal.  The Veteran's social interaction was frequently inappropriate.  The Veteran was always oriented to person, time, place, and situation.  The Veteran's motor activity was mildly decreased with moderate slowing, but these motor difficulties were related to the Veteran's multiple sclerosis, not to his TBI.  The Veteran's visual-spatial orientation was normal.  The Veteran's current neurobehavioral effects included irritability, lack of motivation, verbal aggression, lack of empathy, and moodiness.  The Veteran was able to communicate by spoken and written language, and he was able to comprehend spoken and written language.  The Veteran's consciousness was normal.  The examiner assigned the Veteran with a GAF score of 55.  Overall, the examiner found that the Veteran was independent in the performance of all activities of daily living, and his symptoms of post-concussion disorder had a mild-to-moderate effect on his interpersonal interactions and on the reliability and productivity of his occupational functioning.  

In September 2009, the Veteran denied suicidal ideation, homicidal ideation, or psychosis.  The Veteran maintained good eye contact and his speech was goal-directed.  The Veteran's thoughts and judgments were intact, and the Veteran was oriented.  The Veteran's hygiene and dress were very good, and the Veteran had an appropriate affect.  The Veteran was "focused on getting 100% PTSD SC."  In October 2009, the Veteran complained of chronic right-sided headaches, which he treated with over-the-counter medications.  The Veteran reported a pain level of 8/10.  The Veteran denied suicidal or homicidal ideation.  The Veteran was alert and oriented to person, time, and place.  In a November 2009 VA treatment record, the Veteran indicated that he had a girlfriend.  The Veteran denied experiencing suicidal or homicidal ideation.  The Veteran denied experiencing suicidal or homicidal ideation.  The Veteran was alert and oriented to person, time, and place.  In December 2009, the Veteran indicated that he had spent a "wonderful" Christmas at his mother's home.  His brother, sister, brother-in-law, and nieces and nephews were at the event.  The Veteran denied experiencing suicidal or homicidal ideation, but he indicated that he heard voices on occasion.  The Veteran indicated that his moods were more stable, and he was able to keep his emotions in check.  The Veteran had good eye contact, but his thoughts and judgment were not always intact.  The Veteran was oriented, and his dress and hygiene were good.  The Veteran was calmer than usual, and he coped with the support of his mother.  

In May 2010, the Veteran's mother indicated that the Veteran was depressed, felt worthless, had lost interest in life, had no motivation, isolated himself, avoided people, stayed in his house, and wanted his life to end.  The Veteran, however, denied suicidal ideation with any plan, homicidal ideation, or psychosis.  The Veteran indicated that he was lonely and had a difficult time with appropriate social boundaries.  The Veteran's thoughts and judgments were "okay," but the Veteran's speech was sometimes disorganized and inappropriate.  The Veteran was oriented but sometimes exhibited child-like behavior.  The Veteran was frustrated and depressed, with his affect congruent with his mood.  In June 2010, the Veteran stated that he was feeling "pretty good."  The Veteran indicated that on a typical day, he would bathe himself, call his mother, walk to the barber shop to talk with others, visit his mother, and engage in other activities.  The Veteran indicated that he was very close with his mother and "lives for" her.  

In an October 6, 2010 social work note, a VA social worker noted that the Veteran's mother was "very supportive" of him.  The Veteran denied suicidal ideation, homicidal ideation, or psychosis.  The Veteran made good eye contact, his thoughts and judgment were intact, his speech was organized and coherent but slurred.  The Veteran's affect was at times inappropriate.  The Veteran was alert and oriented, and his dress and hygiene were good.  The Veteran was angry about the status of his VA claim for benefits.  The Veteran coped with the support of his mother, he attended church, and he was involved with his church's veterans mentoring group.  The Veteran hoped to start dating.

On October 25, 2010, the Veteran's mother called VA to report that the Veteran was in a deep depression, isolating, withdrawn, not attending church, and had no motivation to engage in his usual activities.  The Veteran's mother reported that he had no affect, was not taking care of his personal hygiene, and was staying in his pajamas.  In a meeting with his social worker, the Veteran stated that he was "very depressed" and had not left his house, showered, or changed his clothes for approximately 10 days.  The VA clinician noted that the Veteran had a beard.  The Veteran had "no motivation to do anything" and was disorganized, forgetful, and had a poor appetite.  The Veteran reported losing 15 pounds in the preceding three weeks.  The Veteran reported sleeping or watching television most of the time.  The Veteran stopped doing all of his routine everyday activities including cleaning, visiting his mother, eating at a nearby restaurant, driving, and attending church.  The Veteran stated that he had no purpose in life and no will to live.  The Veteran indicated that he had been contemplating suicide daily, and he had a plan to slit his wrists.  The Veteran had stopped taking all of his psychiatric medications.  Later that day, the Veteran was voluntarily admitted to in-patient psychiatric care.

In the October 25, 2010 in-patient psychiatric admissions evaluation, the Veteran denied experiencing feelings of suicidality, but he indicated that he continued to feel depressed.  The Veteran had not been taking his psychiatric medications for two months.  The Veteran was bright, pleasant, and cooperative.  In a nursing note from that day, the Veteran indicated that his depression was of a severity of "10" on a scale from 1 to 10.  The Veteran reported having difficulty sleeping, a poor appetite, and isolative behavior.  The Veteran reported that he had been "making excuses" to avoid engaging socially with friends.   

On October 26, 2010, the Veteran stated that he had been more depressed and having suicidal thoughts for one month.  The Veteran had difficulty sleeping, and he felt tired and irritable.  The Veteran denied experiencing feelings of guilt or hopelessness.  While the Veteran stated that he heard voices telling him that they were "out to get him," the Veteran did not believe that anyone was indeed "out to get him," and he denied experiencing hallucinations.  The Veteran denied symptoms of mania.  The Veteran was able to recall recent events, and he did not have any obvious cognitive defects.  The clinician found the Veteran pleasant, cooperative, and maintained good eye contact.  The Veteran's mood was depressed, his affect was constricted, his thought process was linear, and the Veteran had no suicidal or homicidal ideation.  The Veteran's insight and judgment were fair, and his impulse control was adequate.  The clinician assigned the Veteran with a GAF score of 30.  Three days after the Veteran's in-patient admission, the Veteran stated that he felt ready for discharge.  The Veteran denied any suicidal or homicidal ideation at the time of his discharge, and he indicated that his depression and anxiety had both abated.  The Veteran was discharged from in-patient treatment on November 2, 2010.  

On November 24, 2010, the Veteran indicated that he was "very frustrated" with his physical limitations due to multiple sclerosis and cognitive limitations.  The Veteran denied suicidal thoughts, homicidal thoughts, or psychosis.  The Veteran maintained good eye contact, and his thoughts and judgment were intact.  The Veteran's speech was somewhat slurred but organized and coherent.  The Veteran was oriented to person, time, and place, and his dress and hygiene were good.  The Veteran's mother and other family members supported him. 

In January 2011, a VA treatment note indicated the Veteran was removed from the "high risk list" for suicide.  In another January 2011 treatment note, the Veteran reported that he had a "good" Christmas and New Year spending time with his family.  He had a telephone conversation with a former girlfriend.  The Veteran indicated that he was "doing well."  The Veteran denied suicidal ideation, homicidal ideation, or psychosis.  The Veteran had good eye contact, his thought and judgment were intact, his speech was coherent and organized, and the Veteran was oriented to time, person, and place.  The Veteran had a stable, appropriate affect.  The Veteran reported that he was going out more and attending to his hygiene.  The Veteran reported that he attended church, and he enjoyed reading.

The Veteran received a TBI examination in February 2011.  The examiner opined that the Veteran suffered a mild TBI at the time of his original injury, and the condition was stable because the original injury occurred nearly 30 years ago.  The Veteran reported experiencing difficulty with his memory, but he was unable to provide specific examples of memory failings.  The examiner noted that the Veteran was easily able to access and recall recent historical information in detail during the interview.  The Veteran indicated that he was socially active with his church, and he reported that he enjoyed reading.  The Veteran indicated that he was able to retain what he reads, although at times he re-read passages to aid with comprehension.  The Veteran denied experiencing any difficulty with his activities of daily living, including managing his medications, driving, shopping, preparing meals, housework, and managing his finances.  The Veteran denied experiencing dizziness or vertigo.  The Veteran stated that his left hand did not feel as weak as it did in the past.  The Veteran denied experiencing sleep disturbances, fatigue (to the contrary, the Veteran said that he felt "energetic"), malaise, problems with mobility, or problems with balance.  The Veteran did not use ambulatory devices to assist him with walking.  

The Veteran reported experiencing mild memory difficulties, decreased attention, and difficulty concentrating.  The Veteran denied any problems with executive functions.  The Veteran denied problems with swallowing, and his speech was normal without evidence of aphasia or paraphasic error.  The Veteran's speech was mildly to moderately dysarthric, which the examiner attributed to the Veteran's multiple sclerosis.  The Veteran denied experiencing pain other than headaches, bowel problems, or bladder problems.  The Veteran indicated that he experienced mood swings and irritability, but he indicated that his mood had improved over the past year.  The Veteran denied engaging in physical acts of aggression, but he indicated that he had experienced verbal outbursts, though none recently.  The Veteran indicated that he avoided situations with large groups of people.  The Veteran denied experiencing depression or anxiety.  The Veteran reported occasional tingling in his feet.  The Veteran wore glasses for reading, but he denied experiencing other visual problems.  The Veteran denied hearing problems, tinnitus, and a decreased sense of taste or smell.  The examiner noted that the Veteran had no diagnosis of seizure disorder.  The Veteran denied hypersensitivity to sound or light.  In terms of neurobehavioral symptoms, the Veteran endorsed experiencing irritability.  In terms of symptoms of autonomic dysfunction, the Veteran denied any problems.  The Veteran denied all other symptoms, including symptoms of endocrine dysfunction or cranial nerve dysfunction.  The Veteran's judgment was normal, and his social interaction was occasionally inappropriate.  The Veteran was always oriented to time, place, and situation.  The Veteran's motor activity was mildly decreased with moderate slowing, but these difficulties were related to the Veteran's multiple sclerosis, rather than to his TBI.  The Veteran's visual spatial orientation was normal.  The Veteran's neurobehavioral effects frequently interfered with workplace interaction and social interaction but did not preclude them.  The Veteran's current neurobehavioral effects included irritability, lack of motivation, lack of empathy, and moodiness.  The Veteran could communicate by spoken and written means, and he could understand spoken and written language.  The Veteran's consciousness was normal.

The Veteran indicated that his symptoms were stable.  The Veteran's headaches were treated with topiramate; the Veteran was not otherwise receiving treatment for TBI.  The examiner noted that the Veteran's symptoms of irritability and mood swings had a mild impact on the Veteran's interpersonal relationships with others.  Along with cognitive difficulties, the symptoms had a mild impact on the reliability and productivity of his occupational functioning.  

Upon physical examination, the examiner noted that the Veteran's neurological abnormalities resulted from his multiple sclerosis.  The Veteran's motor function, muscle tone, and bulk were normal, but increased leg tone was observed on the left compared to the right.  The Veteran's deep tendon reflexes were 0/4 throughout, except for +1/4 at the knees bilaterally.  No pathological reflexes were observed.  The Veteran's sensory function was normal to position, vibration, cold, light touch, and double simultaneous stimulation.  The examiner observed no abnormal sensory function.  The Veteran demonstrated a moderate wide-based stable gait with mild right circumduction, and he had mild difficulty with a tandem gait.  The Veteran showed reduced alternating motion rates at the left fingers and at both feet.  Bilateral action-postural upper extremity tremulousness, with the left greater than the right was noted.  The Veteran could not hop on either foot.  The Veteran could walk normally on his heels and toes.  Heel-knee-shin was normal on the right, and mild ataxia was noted on the left heel-knee-shin.  No fasciculation was noted, and Romberg's test was negative.  The Veteran showed no evidence of autonomic nervous system dysfunction.  The Veteran demonstrated a left lateral gaze rotary nystagmus, and mild to moderate dysarthria was noted.  Otherwise, the Veteran's cranial nerves were without evidence of abnormality.  The Veteran did not have papilledema.  

In terms of cognitive impairment, the Veteran's test performance indicated an inconsistent effort, ranging from poor effort and motivation to exaggeration of deficits and symptoms.  The examiner indicated that there was evidence that the Veteran exaggerated, if not fabricated, his symptoms and deficits.  Many results were well below that typical of persons with brain injuries significantly more severe than mild TBI.  The Veteran's performance on memory testing was well below that of persons with mild to moderate Alzheimer's disease.  If the Veteran were actually functioning at the level portrayed on testing, the Veteran would require institutionalization and assistance with even the most basic daily activities.  These test results were inconsistent with the Veteran's presentation, his ability to provide current and remote historical information, manage his person and his home, and independently manage his medications and finances.  In addition, the Veteran endorsed bizarre and unusual psychotic symptoms not actually seen in psychiatric patients, illogical and highly atypical neurological symptoms, symptoms of memory impairment that are inconsistent with patterns of impairment seen in brain dysfunction or injury, atypical symptoms of depression and anxiety, and fabricating or exaggerating intellectual deficits by failing simple general fund of information items.

The examiner noted that the Veteran arrived 30 minutes late, and he ambulated with a wide-based stable gait without the aid of assistive devices.  The Veteran's grooming was adequate, and he appeared his stated age.  The Veteran was alert and oriented to time, place, and person, but his eye contact was poor.  The Veteran appeared euthymic, but his affect and mood were irritable.  The Veteran reported that his mood swings had improved with his current medications.  The Veteran denied experiencing verbal or physical aggression.  The Veteran's appetite was fine and his sleep was good.  The Veteran reported drinking three beers daily, but the examiner believed that the Veteran was minimizing his current use.  The Veteran denied experiencing hallucinations.  The Veteran's speech was dysarthric, probably as a result of his multiple sclerosis.  No obvious word-finding difficulties were observed.  

While testing, the Veteran responded with long latencies.  Eye contact with the examiner was poor, and the Veteran's motivation was marginal to poor.  The examiner found that it was impossible to quantify the Veteran's potential decline because of the Veteran's approach to testing.  The examiner noted that the Veteran was reporting improvement in some areas, with fewer mood swings and better sleep.  The examiner noted that it would be highly unlikely for mild TBI symptoms to increase 30 years after the event.  Instead, any current increase in cognitive deficits or increased symptoms the Veteran may experience in the future, are likely related to his multiple sclerosis.  

The Veteran's GAF score due to his TBI was 60, 55 due to his cognitive disorder and alcohol abuse, and 50 due to his cognitive disorder, alcohol abuse, and multiple sclerosis.  The examiner noted that the Veteran was independent in the performance of all activities of daily living.  The Veteran's TBI symptoms had a mild effect on his interpersonal interactions as well as on the reliability and productivity of his occupational functioning.  

Turning to an application of the pertinent laws to the facts in the instant case, the Board will address the applicable rating under the TBI facets and the General Rating Formula for Mental Disorders to determine the appropriate disability rating for the Veteran's post-concussion syndrome with cognitive disorder.

With regard to the TBI facets, a level of severity of "2" has been assigned for the memory, attention, concentration, and executive function facet.  The record demonstrates objective evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.  The Board does not observe evidence of "moderate" functional impairment of this facet.  Though the February 2011 examiner noted that the Veteran's results for memory testing were well below that typical of persons with brain injuries significantly more severe than mild TBI, the examiner attributed these results to exaggeration and fabrication on the Veteran's part.

A level of severity of "2" has been assigned for the judgment facet, which is indicative of moderately impaired judgment.  The Board does not observe evidence of moderately severely impaired judgment.  Clinicians' observations regarding the Veteran's judgment have varied: in January 2009, the Veteran's "appropriateness was suspect"; in June 2009, the Veteran's judgment was "poor"; in August 2009, the Veteran's judgment was "normal"; in December 2009, the Veteran's judgment was "not always intact"; in October 2010, the Veteran's judgment was "fair"; in January 2011, the Veteran's judgment was "intact".  The Board finds that the evidence does not demonstrate that for even routine and familiar decisions, the Veteran is occasionally unable to identify, understand, and weigh the alternatives, understand the consequences, and make a reasonable decision.  Clinicians have consistently found the Veteran to be able to independently manage his finances and activities of daily living, which the Board finds to be inconsistent with a greater rating for this facet.

A level of severity of "2" has been applied for the social interaction facet, because clinicians have noted that the Veteran's social interaction is frequently inappropriate.  The evidence does not suggest that the Veteran's social interaction is inappropriate most or all of the time; to the contrary, he reported engaging in and enjoying social interaction with his mother, extended family, and friends.

A level of severity of "0" has been assigned for the orientation facet because the Veteran has always been oriented to person, time, place, and situation.

A level of severity of "0" has been assigned to the motor activity facet.  Though clinicians have observed motor impairment, this impairment has been related to the Veteran's non-service-connected multiple sclerosis, and not to the Veteran's post-concussive syndrome.  With no motor impairment as a result of post-concussive syndrome, a greater level of severity is not warranted for this facet.

A level of severity of "0" has been assigned to the visual spatial orientation facet.  The August 2009 and February 2011 examiners noted that the Veteran's visual-spatial orientation was normal.  The evidence does not suggest that the Veteran has mildly impaired visual spatial orientation such that he occasionally gets lost in unfamiliar surroundings, has difficulty reading maps, or following directions.

A level of severity of "1" has been assigned for the subjective symptoms facet.  While the Board acknowledges the severity of the Veteran's headaches, a greater level of severity is not warranted because the Veteran has not demonstrated three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships.  In assigning this rating, the Board acknowledges that the evidence does not demonstrate that the Veteran has "three or more" such subjective symptoms-indeed, he has one: headaches-but the Board has assigned a level of severity of 1 in order to acknowledge the severity of the Veteran's headaches. 

A level of severity of "2" has been assigned for the neurobehavioral effects facet.  The evidence does not generally suggest that the Veteran suffers from one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days, or that occasionally require supervision for the safety of the Veteran or others.  The Veteran has experienced outbursts of verbal aggression, but VA examiners have not found these symptoms to preclude the Veteran from socially interacting or working.

A level of severity of "0" has been assigned for the communication facet.  Examiners in August 2009 and February 2011 observed that the Veteran could communicate by spoken and written means, and he could understand spoken and written language.

The Veteran has remained fully conscious throughout the period on appeal.  A total rating based on an altered state of consciousness is not warranted.

Accordingly, as the highest level of severity that the Board has assigned to the above facets is a "2," a rating of 40 percent is warranted under Diagnostic Code 8045.  As noted above, the regulations pertaining to TBI indicate that when, as in the instant case, there is a diagnosis of a mental disorder, emotional/behavioral dysfunction is to be evaluated under the Schedule of Ratings for Mental Disorders set forth above.  The Board finds that the Veteran's condition is better compensated under this Schedule of Ratings, and it will thus evaluate whether the Veteran's post-concussion syndrome is entitled to a rating in excess of 50 percent at any time on and after October 23, 2008.  

The Board first observes that a 100 percent evaluation is warranted at one time during the period on appeal, from October 15, 2010 to November 2, 2010.  The Board notes that the Veteran was admitted for in-patient psychiatric treatment on October 25, 2010, and he complained at that time that he had been experiencing debilitating symptoms of depression for the preceding 10 days.  During this time, the Veteran completely neglected his appearance: he did not shower, shave, or change clothes.  The Veteran reported that he engaged in none of his activities of daily living, and he had no social contact with his mother.  Furthermore, in association with the Veteran's psychiatric intake, a VA clinician assigned the Veteran with a GAF score of 30, which is consistent with a finding that the Veteran suffered from total occupational and social impairment.  By the time the Veteran was discharged on November 2, 2010, these symptoms had abated.  Later in November 2010, the Veteran denied suicidal thoughts, homicidal thoughts, or psychosis, his hygiene was good, and the Veteran's mother and other family members supported him.  Accordingly, during the period of time from October 15, 2010, when the Veteran reported that his period of debilitating depression began, until November 2, 2010, when he was discharged from in-patient psychiatric care with improved symptoms, the Veteran is entitled to a 100 percent disability rating.

Other than this period of time, however, the Veteran's symptoms do not create total occupational and social impairment.  During this time, the Veteran has maintained a close relationship with his mother, he enjoyed spending holidays with family, and he had telephone conversations with a former girlfriend.  The Veteran reported that he enjoyed reading and was socially active in his church.  Examiners characterized the Veteran as independent in his activities of daily living.  While mindful of the guidance from Mauerhan that the symptoms listed in the General Rating Formula for Mental Disorders are not meant to be used as an exhaustive list, the Board observes that the Veteran has otherwise not met or approximated any of the listed symptoms for a 100 percent rating.  For these reasons, the Board finds that a 100 percent rating of the Veteran's post-concussion syndrome is not appropriate at any time other than from October 15, 2010 to November 2, 2010.

With regard to a 70 percent evaluation, affording the Veteran with the benefit of the doubt, the Board finds that such an evaluation is warranted from the time period from January 3, 2009 (the date of his mental status examination with C.P.H.) to August 12, 2009 (the date before the Veteran's first TBI examination).  The Veteran demonstrated impaired impulse control at the time of his January 2009 assessment; the examiner noted that the Veteran's appropriateness was suspect and that he demonstrated impaired judgment by placing multiple telephone calls to her office before the examination.  The clinician emphasized that the Veteran's speech often required redirection, which implies that his speech was irrelevant in nature.  The January 2009 clinician assigned the Veteran a GAF score of 42, which is indicative of "serious" symptoms.  The Board finds that such a GAF score is consistent with the occupational and social impairment contemplated by a 70 percent disability rating.  VA treatment records from April 2009 are also consistent with the assignment of a 70 percent disability rating.  At that time, the Veteran's mother described him as having been more irritable, the Veteran endorsed experiencing auditory hallucinations and thoughts of engaging in physical violence.  The Veteran's speech was pressured and inappropriate.  The Board finds that these symptoms are similarly consistent with a 70 percent disability rating.  Accordingly, from January 3, 2009 to August 12, 2009, the Board finds that a 70 percent disability rating of the Veteran's post-concussion syndrome with cognitive disorder is appropriate.

Other than this period of time, however, the Board finds that a disability rating in excess of 50 percent is unwarranted.  During an August 13, 2009 TBI examination, the Veteran indicated that his verbal outbursts had come under greater control than in the past, and he denied experiencing symptoms of depression or anxiety.  The Veteran denied experiencing suicidal or homicidal ideation.  The examiner indicated that the Veteran's symptoms of irritability and mood swings would have "some" impact on his interpersonal impacts with others.  The Veteran endorsed feelings of paranoia, but he denied experiencing delusions or hallucinations.  The examiner characterized the Veteran's post-concussional disorder as having a mild-to-moderate effect on his interpersonal interactions and on the reliability and productivity of his occupational functioning.  The examiner also assigned the Veteran with a GAF score of 55, which is consistent with a moderate impairment in function.  

The Board finds that the evidence does not support a finding that the Veteran had occupational and social impairment with deficiencies in most areas during this period.  The Veteran maintained a close relationship with his mother during this time, and in November 2009, the Veteran indicated that he had a girlfriend.  In December 2009, the Veteran indicated that he had spent a "wonderful" Christmas with his mother and extended family.  The maintenance and initiation of close social relationships is inconsistent with symptoms consistent with an "inability to establish and maintain effective relationships" that is associated with a 70 percent disability rating.  Furthermore, the Veteran consistently denied suicidal ideation, homicidal ideation, or psychosis.  The Veteran never showed a neglect of personal hygiene or his appearance generally.  The Veteran's thoughts and judgments were consistently intact.  In December 2009, the Veteran stated that his moods had stabilized (he described himself as "calm" at this time), and he felt able to keep his emotions in check.  In June 2010, the Veteran indicated that on a typical day, he would call his mother and talk with friends at a local barber shop.  For these reasons, the Board finds that while the record contains a few symptoms associated with a 70 percent rating, a 70 percent rating of the Veteran's PTSD is not appropriate in the instant case, other than from January 3, 2009 to August 12, 2009.

Instead, after a thorough review of the evidence, the Board finds that the totality of the evidence indicates that the impact of the Veteran's post-concussion syndrome with cognitive disorder on his social and industrial functioning is most congruent with the currently-assigned 50 percent evaluation.  Although the Veteran does not have all the symptomatology consistent with the assignment of a 50 percent rating, the Board finds that the impact of the Veteran's post-concussion syndrome on his social and occupational functioning sufficiently approximates the degree of impairment contemplated by a 50 percent rating.  See 38 C.F.R. § 4.7 (2012).  The Veteran has consistently complained of difficulty with his memory, and he has consistently shown disturbances of motivation and mood consistent with anxiety and depression.  The Board finds that a 50 percent rating for the Veteran's post-concussion syndrome is warranted throughout the period on appeal.

In making this determination, the Veteran's GAF scores of record have been considered, and the Board finds that these scores are most congruous with the currently-assigned 50 percent disability rating based on disturbances of motivation and mood with associated difficulty in establishing and maintaining effective work and social relationships.

Consideration has also been give to the Veteran's personal assertions in support of his claim.  The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as feelings of stress, anxiety, and depression.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2).  However, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his psychiatric disorder in terms of the applicable rating criteria and its effect on his ability to work.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).   Rather, such a finding necessarily requires appropriate medical findings regarding the extent and nature of his psychiatric disorder.  The clinical evidence of record does not indicate that the assignment of an increased evaluation is warranted.  

Accordingly, the Board finds that from January 3, 2009 to August 12, 2009, a 70 percent disability rating, but no higher, is warranted for the Veteran's post-concussive psychiatric symptoms.  From October 15, 2010 to November 2, 1010, a 100 percent disability rating is warranted for the Veteran's post-concussive psychiatric symptoms.  A disability rating in excess of 50 percent for post-concussion psychiatric symptoms is otherwise unwarranted.  

Extra-schedular Considerations

In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating.  See 22 Vet. App. 111 (2008).  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

In this case, it is not necessary to go any further than the first step of the Thun analysis.  The rating criteria are not inadequate, and it does not appear that the Veteran has "exceptional or unusual" disabilities; he merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that is unusual or different from those contemplated by the schedular criteria.  The available schedular evaluations are adequate.  Referral for extra-schedular consideration is not warranted.  Further inquiry into extra-schedular consideration is moot.  See Thun.



ORDER

The claim for service connection for PTSD is reopened, and the appeal is allowed to this extent.

Service connection for PTSD is denied.

Prior to January 3, 2009, a disability rating in excess of 50 percent for post-concussion syndrome with cognitive disorder is denied.

From January 3, 2009 to August 12, 2009, a 70 percent disability rating, but no higher, is granted for the Veteran's post-concussion syndrome with cognitive disorder, subject to the laws and regulations governing the award of monetary benefits.

From August 13, 2009 to October 14, 2010, a disability rating in excess of 50 percent for post-concussion syndrome with cognitive disorder is denied.

From October 15, 2010 to November 2, 1010, a 100 percent disability rating is granted for the Veteran's post-concussion syndrome with cognitive disorder, subject to the laws and regulations governing the award of monetary benefits.

From November 3, 201, a disability rating in excess of 50 percent for post-concussion syndrome with cognitive disorder is denied.


REMAND

The Veteran's claims for an initial disability rating in excess of 10 percent for post-concussion headaches and a TDIU must be remanded for further development.  Although the Board regrets the delay, it is necessary to ensure due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

With regard to the Veteran's claim for an initial disability rating in excess of 10 percent for post-concussion headaches, the Board observes that the Veteran was not provided with notice of the rating criteria applicable to headaches before adjudication of his claim.  In this regard, VA has a duty to assist claimants in substantiating their claims.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  VA must notify the claimant of any information needed to substantiate a claim.   In this case, the Veteran was not provided with correct VCAA notice concerning how to substantiate a claim of entitlement to an increased disability evaluation for headaches.  Given that the Veteran's disabilities are rated in a relatively complex manner under diagnostic codes applicable to both TBI and migraine headaches, the Board finds proper notice regarding the pertinent rating criteria for migraine headaches to be essential in this case.

With regard to the Veteran's claim for a TDIU, VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.  Under 38 C.F.R. § 4.16, if there is one such disability, this disability must be ratable at 60 percent or more; if there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a) (2012).  Disabilities arising from a common etiology or a single accident may be considered as a single disability.  See id.  

Turning to the facts in the instant case, the Veteran is service connected for two disabilities: post-concussion psychiatric symptoms and post-concussion headaches.  Both of these conditions arise from a single injury: the in-service hammer assault.  Therefore, treating these two disabilities as a single disability, the Board finds that the Veteran is in receipt of at least a 60 percent rating for this single injury throughout the period on appeal.  Therefore, the Veteran's service-connected disability meets the above-described percentage rating standards for a TDIU.  The Veteran has thus satisfied the above-described schedular requirements for a TDIU, and the remaining determination is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of such disabilities.

"Substantially gainful employment" is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides.  See VA Adjudication Manual, M-21-1MR, Part IV, sub. ii, Ch. 2, Sec. F, 24(d).  This term suggests a living wage.  Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).  The ability to work sporadically or to obtain marginal employment is not substantially gainful employment.  See 38 C.F.R. § 4.16(a) (2012); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  A veteran may be considered unemployable upon termination of employment that occurred because of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that the veteran is unable to secure further employment.  See 38 C.F.R. § 4.18 (2012).  The determination as to whether a TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991).

Any consideration as to whether the Veteran is unemployable is a subjective one, that is, one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person.  See Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Prec. Op. VA Gen. Counsel 75-91 ("Unemployability" in VA Regulations on Total Rating Compensation, Inability to Secure and Follow Substantially Gainful Employment; No Average Person Standard, 57 Fed. Reg. 2317 (1992)).

Advancing age and non-service-connected disability may not be considered in the determination of whether a veteran is entitled to a TDIU.  See 38 C.F.R. § 3.341(a), 4.19 (2012).  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Turning to the facts in the instant case, in March 2006, the Veteran indicated that he had last worked full-time in March 2006 as a landscaper.  The Veteran stated that he had completed two years of high school.  In May 2006, the Veteran reported that he engaged in part-time work that involved maintenance activities.  A VA examiner found that the Veteran did not have medical issues that would preclude him from gainful employment, though the type of work could not require complex problem solving or intellectual skills.  

In August 2007, the Veteran stated that he was recently let go from a job after six weeks because of difficulty meeting a quota.  The Veteran indicated that this difficulty was "totally because of the weakness in [his] left hand."  The Veteran indicated that he worked for a golf course in April 2007 for about six weeks, but he quit because he was "getting dehydrated" working in the heat.  In March 2008, the Veteran indicated that he worked as a security guard.  In April 2008, the Veteran stated that he was "let go from jobs" because his "left hand is disabled."  In May 2008, the Veteran stated that he was unable to "earn a livable wage" because of his tremors and left hand weakness.  In July 2008, the Veteran stated that he was unable to "do a production type job" because of headaches and tremors in his left hand.  In September 2008, the Veteran indicated that he was unable to earn a livable wage because of his tremors and left-hand weakness.  In June 2008, the Veteran was employed as a security guard.  

In a January 2009 mental status examination for SSA benefits, the Veteran stated that he had to quit his last position in June 2008 "because of the headaches."  A private psychologist indicated that the Veteran's condition affected his ability to respond appropriately to supervision, co-workers, and work pressures.  Specifically, the Veteran's condition would cause a moderate impairment in his ability to interact appropriately with the public and with co-workers.  The Veteran's condition would cause a marked impairment in his ability to interact appropriately with supervisors and to respond appropriately to changes in a routing work setting, and it would cause an extreme impairment in the Veteran's ability to respond appropriately to work pressures in a usual work setting. 

In June 2009, a VA social worker stated that the Veteran "obviously can't work and should be on 100% VA SC unemployability."  In April 2009, the same VA social worker indicated that the Veteran could not hold a job, and "should be rated by VA as unemployable."  In August 2009, the same VA social worker again stated that the Veteran "obviously can't work."  In August 2009, a VA TBI examiner found that the Veteran's post-concussional symptoms were not of the severity that would preclude competitive employment.  The examiner noted that the Veteran had been successfully employed since experiencing his TBI, including one job in which the Veteran was employed for approximately six years.

In March 2010, the Veteran indicated that he had graduated from high school and that he had last worked in 2008.  In January 2010, the SSA determined that the Veteran had been unable to engage in substantially gainful employment since June 2008 due to multiple sclerosis and a mood disorder.  In October 2010, the Veteran's social worker indicated that she agreed with the Veteran that he is unemployable due to cognitive and mental health issues.  The social worker indicated that the Veteran had a history of multiple jobs and an inability to hold a job for any length of time.  A November 2010 treatment record indicated that the Veteran could not work, which caused the Veteran to feel further frustration and depression.  It is unclear, however, whether this statement reflects the clinician's opinion or a transcription of the Veteran's opinion.

In a February 2011 general medical examination that considered only the Veteran's seizure disorder, migraines, and multiple sclerosis (and specifically excluded consideration of "cognitive issues), the examiner found that the Veteran's service-connected conditions alone would render him inappropriate for physical employment, but they would not preclude the Veteran from engaging in sedentary employment.  This conclusion is inadequate for several reasons.  The examination considered only the effects of his service-connected headaches on his unemployability; it did not consider the effects of the Veteran's service-connected post-concussion headaches in concert with his service-connected post-concussion psychiatric symptoms.  Additionally, the conclusion appeared to also consider the effect of the Veteran's non-service-connected conditions (of seizure disorder and multiple sclerosis) on his employability.  Lastly, the conclusion did not consider contrary statements of the VA clinicians.  

In February 2011, a TBI examiner opined that the Veteran's symptoms would have a mild effect on the reliability and productivity of his occupational functioning, and such symptoms were not of a severity that would preclude him from obtaining competitive employment.  As a rationale for this opinion, the examiner noted that the Veteran had recently been employed in a landscaping and maintenance position for six years.  The examiner opined that there were no symptoms related to the Veteran's mild TBI that would render him unemployable.  While this examiner properly considered only the effects of the Veteran's service-connected conditions on his ability to find employment, the examiner did not address any of the contrary findings of VA clinicians.  Furthermore, while the Veteran indeed engaged in landscaping work for six years, the Veteran had not engaged in this work for nearly four years at the time of the February 2011 examination.  The Board finds that this length of time that had elapsed since the Veteran's most-recent long-held position detracts from the examiner's rationale.  Additionally, the examiner stated that the Veteran "is receiving social security disability because of his multiple sclerosis."  While this is true, it is also misleading because the Veteran is also in receipt of SSA benefits based on the "mood disorder" for which the Veteran is service connected.  

Upon review of this evidence, while the Board observes a number of opinions regarding the Veteran's ability to work, no single opinion reviewed the entirety of the Veteran's claims file, considered the evidence appropriately, and commented on the effect of the Veteran's service-connected conditions alone on his ability to engage in substantially gainful employment.  Therefore, on remand, the Veteran should be afforded with an examination to evaluate the effects of his service-connected disabilities on his ability to obtain substantially gainful employment.

Accordingly, the case is REMANDED for the following actions:

1.  Send the Veteran a corrected VCAA letter informing him of the specific rating criteria for substantiating a claim of entitlement to an increased disability rating for headaches under Diagnostic Code 8100, applicable to migraine headache.  The Veteran should be allowed sufficient time to respond.

2.  To the extent available, copies of updated treatment records, VA and non-VA, should be obtained and added either to the claims folder or to the Virtual VA e-folder.

3.  Then, schedule the Veteran for an examination with an examiner of appropriate expertise to evaluate the effects of his service-connected disabilities (that is, post-concussion psychiatric symptoms and post-concussion headaches) on the Veteran's ability to obtain and maintain substantially gainful employment.

The examiner should offer an opinion regarding the Veteran's ability to procure and maintain gainful employment consistent with his education and occupational experience.  This opinion should be offered irrespective of age and any nonservice-connected disorders (including, for example, multiple sclerosis, tremors, a left eye condition).  The claims file must be made available for review and the examiner's report should reflect that such review occurred.  

Specifically, the examiner is requested to offer an opinion as to whether the Veteran's service-connected disabilities are alone or in concert so severe as to preclude substantially gainful employment.  This opinion should consider the statements from VA clinicians indicating that the Veteran is unable to engage in substantially gainful employment.  If the Veteran's nonservice-connected disabilities preclude substantially gainful employment, such should be stated.

The examiner should not base the opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991).

The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. 

4.  The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  See 38 C.F.R. §§ 3.158, 3.655 (2012).

5.  Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim.  If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded.  See 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 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 2002 & Supp. 2012).



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs