Citation Nr: 1326147 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-27 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for traumatic brain injury (TBI). 2. Entitlement to an initial rating for post-traumatic stress disorder (PTSD) rated 30 percent disabling prior to January 12, 2012, and as 70 percent disabling thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for TBI which was assigned an initial 40 percent disability rating and also granted service connection for PTSD which was assigned an initial 30 percent rating, all from November 4, 2008 (date of receipt of the claim for service connection for those disorders). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board remanded this case in December 2011 for further development. Thereafter, an August 2012 rating decision granted in increased to 70 percent for PTSD and granted basic eligibility for Dependents' Educational Assistance (DEA), both effective January 12, 2012 (date of VA psychiatric examination). An unappealed November 1992 rating decision denied service connection for headaches and total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The evidence shows that the Veteran has remained employed and, so, entitlement to TDIU is not at issue. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran was notified in December 1992 of a November 1992 rating decision which denied service connection for headaches. The Veteran did not appeal that decision. A February 10, 2012, VA examination indicates that he has headaches due to his TBI. The Board construes this to be an application to reopen the claim for service connection for headaches. However, reopening of the claim for service connection for headaches has not been adjudicated by the RO and, so, the Board has no jurisdiction over this matter and it is referred to the RO for initial consideration. FINDINGS OF FACT 1. The Veteran's TBI residuals have resulted in a score of no more than "2" on the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified; greater impairment consistent with a higher score on that table, including increased cognitive deficits, behavioral, psychological, or physical symptoms no subject to separate ratings were not manifested. 2. Prior to January 12, 2012, the Veteran's PTSD was manifested by no more than mild overall social and occupational impairment, consistent with his GAF score of 61. 3. Since January 12, 2012 the Veteran's PTSD has been manifested by less than total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for TBI are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.21, 4.124a, Diagnostic Code 8045 (2012). 2. Prior to January 12, 2012, the criteria for a rating in excess of 30 percent for PTSD were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.21, 4.126(a), Diagnostic Code 9411 (2012). 3. Since January 12, 2012, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.21, 4.126(a), Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). The instant appeal arises from the Veteran's disagreement with the initial evaluations assigned with the grants of service connection for TBI and PTSD in April 2009. The courts have held that were the underlying claim for service connection has been granted and there is disagreement as to downstream questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In consideration of Hartman and Dunlap, further VCAA notice is not required in this case. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. All available evidence pertaining to the Veteran's claims has been obtained. The evidence includes his service treatment records (STRs), VA treatment records, VA examination reports, and statements from the Veteran and his wife. The Veteran was afforded VA examinations in February and March 2009 as to the disabilities herein at issue and, based upon contentions of a worsening of the disabilities giving rise to the December 2011 Board remand, he was afforded additional VA rating examinations in January and February 2012. The Board finds that the VA examination reports are adequate for evaluation purposes because the examiners conducted a physical examination, reviewed the medical history, and described the disabilities in sufficient detail so that the Board's evaluation of the disabilities is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The adequacy of the examinations obtained has not been challenged. The Board is entitled to assume the adequacy of a VA examination unless it is challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999). There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any other pertinent evidence, not already of record. The Board is also unaware of any such evidence. Accordingly, there has been full compliance with the VCAA imposed duty to assist. Background The STRs show that the Veteran underwent a right-sided frontoparietal cranioplasty in November 1971 because an explosion caused a depressed skull fracture with the acquired absence of a portion of his skull. That same explosion resulted in his enucleation of the right eye, for which he was fitted with a prosthesis in February 1971. A June 1972 addendum to Medical Board Proceedings noted that the Veteran was neurologically normal, and his cranial nerves appeared intact, with the exception of his having a prosthetic right eye. There was no evidence of motor or sensory deficit. His reflexes appeared to be equal and responsive. He was discharged from active service due to his injuries. On VA examination in 1992 the Veteran reported, in part, that he was employed as a maintenance man, part-time, in oil fields. A neurological examination was normal, including reflexes, and sensation to position, vibration and pinprick. A June 2008 VAOPT record noted that in the last few years the Veteran had had a recurrence of symptoms of PTSD, including flashbacks, nightmares, intrusive thoughts, avoidance symptoms, as well as being socially avoidant and being easily startled. His sleep was satisfactory, although he awakened 2 or 3 times nightly and he was often tired. His concentration was not good and he lost interest in things quickly. He had last had suicidal thoughts in the 1990s. He had no problems with motivation but was very grouchy and very short of patience. He still had some problems controlling his anger but not as much as in the past. He had lost interest in being sociable with others. He felt that his PTSD symptoms affected his marriage and job performance. In the past he had been let go for being verbally aggressive with co-workers. He had not undergone hospitalization or had counseling. He had been married twice and was living with his second wife of 30 years. He had very few friends. He had driven a concrete mixing truck for the last 13 years. On mental status examination he was casually dressed, well groomed, cooperative, and pleasant. He had no psychomotor abnormalities or abnormal movements. He did not respond to internal stimuli. His speech was normal in rate, volume, tone, and rhythm. His mood was anxious and depressed. His affect was congruent with his mood, and it was restricted. His thought process was coherent and goal directed. There was no delusional, suicidal or homicidal ideation. He was fully oriented. It was noted that he had some depression but not severe. His current GAF score was 54. He was to increase his dosage of Zoloft. A July 2008 VAOPT record noted that the Veteran had been off work for 2 weeks because, as a truck driver, he had let one of his licenses expire. An October 2008 VAOPT record noted that his psychotropic medication was working and he had more energy and had less anxiety, agitation, and depression. He reported not having anhedonia. His concentration was good. His energy level was satisfactory and he slept 7 to 8 hours nightly. He denied having suicidal or homicidal ideation as well as delusions or auditory or visual hallucinations. On mental status examination he was casually dressed, neatly groomed, and cooperative. He engaged easily and had no psychomotor abnormalities or involuntary movements. He was not responding to internal stimuli. His speech was normal in rate, volume, tone, and rhythm. His mood was euthymic and his affect was animated. His eye contact was appropriate. His thoughts were coherent and goal directed. He was alert and fully oriented. His concentration was intact, as was his memory for immediate, recent, and remote events. His insight and judgment were good. The diagnoses were chronic PTSD, and major depression, in partial remission. On VA examination for evaluation of TBI residuals on March 12, 2009, the claim file was reviewed and the examiner reported that the Veteran's TBI condition had been stabilized. He had headaches on an average of once or twice daily which were moderate to severe and lasted only a few seconds. This usually occurred in the right temporal area, but sometimes on the left side. There were no associated symptoms and he had not been treated for headaches. He reported having slight orthostatic type symptoms, and the examiner noted that these might be related to the Veteran's blood pressure medication. He had no weakness or paralysis. He did have sleep disturbance on a regular basis, awaking during the night due to nightmares or other dreams. He had fatigue and also malaise. He had no problems with mobility. As to balance, he had difficulty maintaining his balance if his closed his left eye and he had had this symptom since his initial injury. However, he did not use any ambulatory aid. As to the Veteran's memory, he reported having had some problem with short-term memory for the past 10 to 12 years, reporting "I forget everything." He would forget appointments, birthdays, and other similar events. He had to write things down to remember them. He could drive and get from one place to another without any difficulty. As to cognitive problems, with respect to possible decreased attention or difficulty concentrating, he reported that he was easily distracted but had been this way all of his life. He had no difficulty with executive functions. He had had some difficulty swallowing recently but an upper endoscopy had revealed some ulcers, but no strictures. He had no pain or bowel or bladder problems. As to sensory changes, the Veteran had some numbness and tingling in both hands for the past 5 years. The examiner noted that this was suggestive of carpal tunnel syndrome. He had problems hearing, more in the right ear than the left ear. He had tinnitus, primarily in the right ear. His senses of taste and smell had slowly decreased over time. He had no seizures. As to hypersensitivity to sound or light, he reported that loud noises irritated him and bright lights hurt his remaining eye. He reported being easily irritated and being jittery at times. He also reported that in recent years he had had difficulty tolerating heat and had increased sweating. The examiner noted that the course of the Veteran's symptoms had been stable, or perhaps had gotten slightly worse over the years. He was not now being treated for residuals of TBI. The examiner commented that as to the effect on routine daily activities or employment, the Veteran had worked as a truck driver for 12 years and could function in that occupation. He had previously worked in oil fields and had had other jobs in the past. He was independent with respect to his activities of daily living. On physical examination the Veteran's motor function was 5/5, throughout. There was no muscle atrophy or loss of muscle tone. Deep tendon reflexes were 1+ and equal in the upper extremities, 2+ at the patellae, and absent at both ankles. He had no pathological reflexes. All sensations were intact in all extremities except for slightly decreased sensation over the left 5th toe. His gait, including tandem gait, was normal. He had no tremor, fasciculations, incoordination or spasticity. As to his autonomic nervous system, there was no orthostasis, hyperhidrosis, heat intolerance or other abnormality. Cranial nerves III through XII were intact. With respect to cognitive impairment, the Veteran could not trace a line correctly, did not put hours on a clock face, and made 2 errors when performing serials 7's. He could remember 3 out of 5 words. He had 20/25 vision in the left eye and his hearing was grossly normal. No autonomic dysfunction was noted. From objective testing, the Veteran had mild impairment of memory, attention, concentration or executive functions, resulting in mild functional impairment. His judgment was normal but his social interaction was occasionally inappropriate. His motor activity and visual spatial orientation were normal. Subjective symptoms which did not interfere with work or activities of daily living were mild or occasional headaches and mild anxiety. Neurobehavioral effects that did not interfere with work or social interaction were irritability, impulsivity, unpredictability, lack of motivation, verbal and physical aggression, belligerence, apathy, lack of empathy, moodiness, lack or cooperation, inflexibility, and impaired awareness of disability. Any of these might range from slight to severe, although verbal and physical aggression were likely to have a more serious impact on workplace and social interaction that some of the other effects. There was no impairment in his ability to communicate and his consciousness was normal. The diagnosis was a mild TBI, related to past skull fracture. It was commented that his headaches were as likely as not related to his injury. The mild cognitive changes were less likely related to his head injury because their onset was many years after the injury and were more likely related to his psychological and other medical problems. On VA psychiatric examination on March 17, 2009, the claim file and VA records were reviewed. It was noted that the Veteran had had been seen for mental health treatment. He reported still having nightmares once in a while. He tended not to socialize except at work and church. He felt detached and avoided his family. His wife probably felt that he needed anger management. He had worked as a house painter for 10 to 15 years, then in oil fields for about 10 to 12 years, and had been driving a concrete mixer truck for 12 years. His PTSD had never cost his a job but he believed that his eye injury had caused him jobs because he could not do certain types of work. He had had episodes of confrontations with others at work but, for the most part, he was able to engage in satisfactory work performance. He had struck a co-worker about 1 1/2 years ago and although initially fired for this, he was rehired within a half hour and continued to work as a concrete mixer truck driver. The Veteran reported that the quality of his marriage of 30 years was good, but it had been shaky in the past when he had been drinking. He had stopped drinking and been "saved" about 6 years ago. He denied having any specific hobbies or leisure interests but spent his spare time working in his vehicle and doing yard work. He had relatively limited social activities. He had benefited by taking Zoloft, and taking this medication was his only form of psychiatric treatment. He had never been hospitalized for psychiatric reasons. As to activities of daily living, he exhibited no impairment in basic activities of daily living. On mental status examination the Veteran was well groomed and had good hygiene. He had a slightly droopy right eyelid. His posture, gait, and psychomotor activity were within normal limits. He was cooperative, courteous, and pleasant. His speech and communication were normal in rate, rhythm, tone, and volume. His thought processes were clear, logical, goal directed, and coherent. His thought content was relevant and appropriate. His behavior was also appropriate. He had no history of hallucinations or delusions. He initially described his mood as being great but then reported that it was pretty good, but with occasional episodes of depression. He had had passing thoughts of suicide but had never had any plans or taken any action. He was fully oriented. He had good remote and short term memory but had some problems spelling a 5-letter word in reverse and doing serial 7's. The examiner noted that this might be due to the Veteran's having a limited education because the Veteran appeared to exhibit performance anxiety and also seem self-conscious about his knowledge or abilities in general. His interpretation of proverbs was somewhat concrete and he had difficulty putting his thoughts into words. His social judgment appeared to be intact but he had only partial psychological insight. The diagnoses were chronic mild PTSD, and a mild depressive disorder, not otherwise specified but most likely secondary to PTSD, as well as alcohol dependence and cannabis abuse in full sustained remission. His GAF score was 61. The Veteran's PTSD signs and symptoms were sufficiently transient or mild to decrease his work efficiency and ability to perform occupational tasks only during periods of significant distress. Primarily, his occupational difficulties were manifested by occasional confrontations with co-workers but he had not lost a job due to PTSD (except as described). Socially, there had been mild withdrawal and reluctance to socialize but the Veteran seemed to be able to form close connected relationships with his wife, stepson, and step-grand children. He required continuous medication, and Zoloft help considerably in taking the edge off of his mood problems. VAOPT record show that in April 2009 the Veteran reported that Zoloft continued to be helpful. He was sleeping well and had not had any excessive periods of depression or mania, although his wife still thought he was at times irritable. On mental status examination he was neat, cooperative, and easy to engage. His mood was euthymic and his affect was congruent. His speech and psychomotor abilities were within normal limits. His thought processes were goal directed and there were no hallucinations or suicidal or homicidal ideations. He was cognitively intact and had good insight and judgment. In July 2009 the Veteran's wife wrote that the Veteran's condition had worsened. He had had terrible mood swings. In the past he had been physically abusive, had a terrible temper, had broken furniture, and had been drunk much of the time. At times he had been distant from her and his step-son. He had nightmares and awoke crying. On VA psychiatric examination on January 12, 2012, the Veteran's claim file and electronic medical records were reviewed. The diagnoses were PTSD and a depressive disorder, not otherwise specified, and it was not possible to differentiate the Veteran's symptoms between the two disorders. The Veteran's GAF score was 45. The symptoms which contributed to each diagnosed psychiatric disorder were a depressed mood, nightmares, and social isolation. He had TBI residuals, rated 40 percent disabling, and it was not possible to differentiate between the symptoms of PTSD and TBI. The Veteran's condition was best summarized as causing occupational and social impairment with reduced reliability and productivity. The examiner reported that it was possible to differentiate what portion of occupational and social impairment was due to each diagnosed psychiatric disorder; and that it was possible to differentiate what portion of occupational and social impairment was due to TBI. The Veteran denied any significant changes in his social, marital, and family history. He had a good relationship with his family. He still worked as a truck driver and although he had been fired twice, he had been rehired. He had had a physical altercation with a co-worker 5 years ago. He continued to receive VA mental health treatment via medication. He also expressed an interest in psychotherapy. He denied having had any psychiatric hospitalizations as well as any legal or behavioral problems in the past or currently. He denied any problems with drugs or alcohol. His symptoms documenting PTSD were recurrent distressing dreams, markedly diminished interest or participation in significant activities, difficulty falling or staying asleep, irritability or outbursts of anger. His symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning. It was further reported that the Veteran had a depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, an inability to establish and maintain effective relationships, and suicidal ideation. He had no other symptoms attributable to PTSD or other mental disorders. He was capable of managing his financial affairs. On VA examination on February 10, 2012, for evaluation of TBI residuals the Veteran's medical records and claim file were reviewed. It was noted he had residuals of TBI and also had headaches attributable to TBI. He reported that since his last evaluation he had continued to have recurrent headaches. He also reported having short term memory problems. He did not take any medication for headaches, other than Tylenol. On assessment of 10 facets of TBI-related cognitive impairment and subjective symptoms, as to the first facet (1), Veteran's memory, it was reported that he had a complaint of mild memory loss, e.g., difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items, attention, concentration, or executive functions, but without objective evidence on testing. As to (2) judgment, it was normal. As to (3) social interaction, this was occasionally inappropriate. As to (4) orientation, he was always fully oriented. As to (5), motor activity, this was normal. As to (6) visual spatial orientation, this was also normal. As to (7) subjective symptoms, these did not interfere with work; instrumental activities of daily living; or work, family or other close relationships, and examples were mild or occasional headaches, and mild anxiety. As to (8) neurobehavioral effects, these did not interfere with workplace interaction or social interaction. As to (9) communication, he was able to communicate by spoken and written language, i.e., expressive communication, and to comprehend spoken and written language. As to (10) consciousness, this was normal. In sum, all 10 of the facets were at level 1 except that there was level 2 severity in three of the facets; with those being that of (a) memory, attention, concentration, and executive functions, (b) subjective symptoms, and (c) neurobehavioral effects. There were no facets that were evaluated as being of level 3 or higher. The examiner reported that the Veteran had subjective symptoms or neurological symptoms due to TBI in the form of headaches. Further, it was reported that neuropsychological testing had been done the day of the evaluation. The results were "MoCA results - 23/30. Low score on Delayed recall (0/5), Fluency (0/1), Repeat (1/2)." It was noted that the test results were more likely related to concentration problems that were very common in neuropsychiatric conditions, such as PTSD, and less likely to be related to TBI. The examiner stated that the TBI residuals impacted on the Veteran's ability to work in that as a truck driver he was having problems remembering some addresses. General Rating Principles Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. TBI Under the previous regulation, 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008) provided for the evaluation of brain disease due to trauma. This diagnostic code specifies that purely neurological disabilities are rated under the applicable diagnostic code. Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma) and may not be combined with any other rating for a disability due to brain trauma. A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 was not to be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Here, the Veteran's original claim for service connection was received on November 4, 2008, after a recent revision to 38 C.F.R. § 4.124a, Diagnostic Code 8045. Because as of October 23, 2008, 38 C.F.R. § 4.124a, DC 8045 was amended, the Board must apply the version of the rating criteria which became effective on October 23, 2008. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Even if it had been received prior to the October 23, 2008, revision, under Note (5) of DC 8045 a veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. Under the amended regulation, which became effective October 23, 2008, Diagnostic Code 8045 provides for the evaluation of TBI. 38 C.F.R. § 4.124a. There are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Analysis As residuals of the inservice trauma that caused the service-connected TBI, the Veteran is also service-connected for loss of part of the skull, rated 50 percent under Diagnostic Code 5296; impairment of central visual acuity, surgical absence, of the right eye, rated 40 percent under DC 6066; a retained foreign body of the left eye with corneal scar, rated 10 percent under DC 6009; and hearing loss of the right ear, assigned a noncompensable rating under DC 6100. Also, he has been entitled to special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of anatomical loss of one eye. All of these ratings have been in effect since July 1, 1974, the date of receipt of original claim for service connection. Thus, separate ratings are already assigned for the physical dysfunction form the initial injury causing TBI, as well as for the emotional/behavioral dysfunction (PTSD). Both the March 2009 and February 2012 VA examinations for evaluating the Veteran's TBI residuals included testing of the 10 facets required for rating TBI residuals under the applicable rating criteria. In sum, these 10 facets are (1) memory, attention, concentration, and executive function; (2) judgment; (3) social interaction; (4) orientation; (5) motor activity (including evaluation of intact motor and sensory systems); (6) visual spatial orientation; (7) subjective symptoms; (8) neurobehavioral effects; (9) communication; and (10) consciousness. The current 40 percent rating was assigned because the 2009 VA testing revealed that he had no more than, at worse, level 2 in the 1st, 3rd, 7th, and 8th facets. He had no more than level 1 upon testing of all remaining four facets, i.e., the 2nd, 4th, 5th, 6th, 9th, and 10th facets. Accordingly, a 40 percent rating was the highest rating assignable under the applicable rating criteria. A 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. However, the recent February 2012 VA examination found results that were the same as those found on the 2009 VA examination. That is that the Veteran had no more than, at worse, level 2 in the 1st, 3rd, 7th, and 8th facets. He had no more than level 1 upon testing of all remaining four facets, i.e., the 2nd, 4th, 5th, 6th, 9th, and 10th facets. Thus, a comparison of the results of the 2009 VA examination with the results of the 2012 VA examination demonstrates that there has been no significant overall change in any of the 10 facets. Moreover, while that 2012 examination noted that the TBI would likely cause problems at work in remembering the addresses to which the Veteran had to drive a truck, his problems with concentration were most likely related to his service-connected PTSD, which is assigned a separate disability rating. Further, despite this problem he has maintained his employment driving a concrete mixing truck for many years. In sum, the Board finds that since the grant of service connection for TBI residuals that service-connected disorder has not been more than 40 percent disabling, and so the rating cannot be "staged" because this represents the greatest level of functional impairment attributable to the condition. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). PTSD The Veteran's service-connected PTSD is currently evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 [PTSD] (2011). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board finds that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012) a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Global Assessment of Functioning (GAF) scores are a scale reflecting 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 the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. If the regulatory rating criteria are met, the Board cannot deny a rating based on factors outside the rating criteria. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). This includes the ameliorating effects of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria). Here, however, the General Rating Formula for Mental Disorders specifically contemplates the ameliorative affect of medication upon a service-connected psychiatric disorder (a noncompensable rating is assigned if that disorder, while formally diagnosed, is not severe enough to interfere with occupational and social functioning or to require continuous medication.) Analysis Evaluation of 30 percent from November 4, 2008, to January 12, 2012 Here, both the results of the 2009 VA examination and the evidence prior thereto show no more than mild occupational and social impairment. This is corroborated by the GAF score of 61 on the 2009 examination which equates with mild overall impairment. While it is neither the number of symptoms, nor the type of symptoms, nor the GAF score which controls in determining whether the criteria for a higher rating have been met, it is the effect of the symptoms, rather that the presence of symptoms, pertaining to the rating criteria that determines the rating. Here, the 2009 examination, as well as the VAOPT records prior thereto and after, reflect that the Veteran had no impairment of his affect, impairment of speech, or impairment of judgment or abstract thinking. He had no impairment in his thought processes, and no delusional, suicidal or homicidal ideation. The 2009 examiner specifically found that his symptom were sufficiently mild or transient to decrease work efficiency and ability to perform occupational tasks only during periods of significant distress. Further, the evidence shows that the Veteran had an improvement in his overall psychiatric status by taking psychotropic medication which was, and remains, his only form of treatment. He has not required psychiatric hospitalization. The Veteran is now employed and, further, has worked continuously for many years. He complains of impaired sleep, some of the classic symptoms of PTSD, depression, and takes medication but he has not genuinely endorsed suicidal or homicidal ideation and he does not have impaired speech or judgment and no more than, at most, mild impairment of memory and insight. He has had irritability, sleep disturbance, and depression but he does not receive individual or group psychotherapy and has been fully oriented and has no thought disorder, delusions or hallucinations which would warrant a rating in excess of 30 percent. The Veteran's difficulties establishing effective work and social relationships is encompassed in the 30 percent rating but, overall, he has not displayed the signs, symptoms or manifestations of psychiatric disability which warranted a rating in excess of 30 percent. This is corroborated by the GAF scores which range from 61, indicating only mild difficulty in social and occupational functioning. Thus, the Board concludes that the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation higher than 30 percent for the service-connected psychiatric disorder at any time since the date of receipt of the claim for service connection and prior to January 12, 2012. Fenderson, supra. In other words, the Veteran's psychiatric disorder has been no more than 30 percent during the relevant time frame, so his rating cannot be 'staged' because the 30 percent rating is his greatest level of functional impairment during this time frame. Evaluation of 70 percent since January 12, 2012 The current 70 percent rating was assigned, effective January 12, 2012, based on finding during the VA psychiatric examination of that date. To warrant the next higher rating of 100 percent he would have to have such symptoms as disorientation of time or place, maintenance of only minimal personal hygiene, and loss for names of self or close relatives, own occupation. However, the 2012 examination reveals that he is fully oriented and has at least adequate hygiene. While he has some memory impairment it is far from being of such severity as to equate with loss of names or of his occupation. Moreover, there is neither gross impairment of his thought process nor persistent delusions or hallucinations. He is not a persistent danger of hurting himself or others and has not engaged in grossly inappropriate behavior. Similarly, he has not been, even intermittently, unable to perform daily activities of living. For a 100 percent schedular rating the evidence must establish that the Veteran has total social and occupational impairment. While he was temporarily fired from his job on one (or perhaps two) occasions, he was immediately rehired. He has not been shown to have lost any job, or refused employment, because of his service-connected psychiatric disability. While his wife still feels that he has significant problems controlling his anger, he has maintained a steady marriage for more than 30 years and does not otherwise have any significant marital or family problems as a result of his psychiatric disability. Thus, the Board concludes that the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for a 100 evaluation higher for the service-connected psychiatric disorder at any time. Fenderson, supra. In other words, the Veteran's psychiatric disorder has been no more than 70 percent disabling since that date, so his rating cannot be 'staged' because the 70 percent rating is his greatest level of functional impairment during this time frame. Extraschedular Consideration Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's disability ratings contemplates his occupational and social impairment caused by his PTSD and depressive symptomatology, as enumerated above. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his PTSD and the symptoms shown are not exceptional or unusual for his PTSD. In determining the appropriate schedular rating 38 C.F.R. § 4.126(a) requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. Indeed, that regulation specifically requires that a rating must be based on all the evidence that bears on occupational and social impairment and not solely on an examiner's assessment of the level of disability at the moment of the examination. Specifically, a wide range of factors as well as signs and symptoms are contemplated in the applicable rating criteria including the use of medication, decrease work efficiency, ability or inability to perform occupational tasks, routine behavior or self-care as well as symptoms such as anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory impairment, impaired affect; circumstantiality, impaired speech; panic attacks; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation or mood; suicidal or homicidal ideation; obsessional rituals; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; delusions or hallucinations; behavior; being a persistent danger of hurting self or others; the degree of ability to perform activities of daily living; and the degree of orientation or disorientation. Moreover, the evidence considered for rating purposes under § 4.130 is not restricted to the symptoms provided in the Rating Schedule; rather, VA must consider all relevant evidence. See Mauerhan, 16 Vet. App. 436, 442 (2002). As to extraschedular consideration in rating the TBI residuals, the table entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" sets forth a plethora of signs and symptoms for consideration in rating the Veteran's TBI residuals. The Veteran is not shown to have any significant symptoms outside of those listed in that table which would warrant extraschedular consideration. Also, the Board notes that an extraschedular rating may not be assigned on the basis of the combined impact of the Veteran's service-connected PTSD and his service-connected TBI, or any combination of service-connected disabilities. Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc). As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability pictures. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). As the preponderance of the evidence is against the claims for initial disability rating in excess of 40 percent for TBI and 30 percent for PTSD prior to January 12, 2012, and in excess of 70 percent thereafter, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 40 percent for TBI is denied. A rating in excess of 30 percent for PTSD prior to January 12, 2012, is denied. A rating in excess of 70 percent for PTSD since January 12, 2012, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs