Citation Nr: 1326167 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 05-29 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to a disability rating in excess of 10 percent for residuals of right orbital and macular fractures (claimed as multiple trauma to face and concussion). 2. Entitlement to a compensable rating for traumatic brain injury (TBI) as secondary to the service-connected disability of residuals of right orbital and macular fractures (claimed as multiple trauma to face and concussion) prior to October 12, 2012, and a disability rating in excess of 10 percent from that date. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from April 1997 to April 2001. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which reduced the ratings for the Veteran's service connected left wrist disability and right orbital and macular fracture residuals from 10 percent to zero percent, effective from March 1, 2005. These matters were before the Board in November 2009, and the Board determined that the reduction of the ratings for the Veteran's left wrist disability and right orbital and macular fracture residuals was improper, and respective 10 percent disability ratings were restored, effective March 1, 2005. In that same Board decision, the related issues of entitlement to disability ratings in excess of 10 percent for each disability were remanded for additional evidentiary development. The matters were again before the Board in November 2011, at which time the Board denied the appeal on the issue of entitlement to a disability rating in excess of 10 percent for residuals of left wrist strain. As that matter has been resolved, it is no longer before the Board for appellate consideration. In addition, in November 2011 the Board remanded the issue of entitlement to a disability rating in excess of 10 percent for residuals of right orbital and macular fractures for additional development. In September 2012 the Board again remanded that matter for additional development. In February 2013 the RO granted service connection for TBI as secondary to the service-connected disability of residuals of right orbital and macular fractures (claimed as multiple trauma to face and concussion) and assigned a separate 10 percent rating effective October 12, 2012. FINDINGS OF FACT 1. The Veteran's service-connected residuals of right orbital and macular fractures are principally manifested by moderate incomplete paralysis; there is no evidence of multi-infarct dementia with brain trauma. 2. Prior to October 12, 2012 the Veteran did not have compensable symptoms associated with TBI; since that time, the Veteran's service-connected TBI is manifested by, at worst, mild impairment in the facets of cognitive impairment and subjective symptoms of a TBI due to such symptoms as memory, attention, concentration and executive functions, without objective evidence on testing. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of right orbital and macular fractures have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.20, 4.124a, Diagnostic Codes 8045-8207 (2012). 2. The criteria for a compensable rating for TBI prior to October 12, 2012 and a disability rating in excess of 10 percent from that date have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.20, 4.31, 4.124a, Diagnostic Code 8045, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a November 2009 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183, 187; Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided VCAA notice to the Veteran (regarding what is necessary to establish entitlement to an increased rating claim), in November 2009. That notice was subsequent to the Board decision that restored the 10 percent rating for residuals of right orbital and macular fractures and initiated the increased rating claims. Notwithstanding, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claims for an increased rating. The November 2009 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. The Board notes that notice regarding the issue of entitlement to a compensable rating for TBI as secondary to the service-connected disability of residuals of right orbital and macular fractures prior to October 12, 2012, and a disability rating in excess of 10 percent from that date, appears to have been satisfied with the November 2009 notice, which addressed increased rating claims. Any defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claims on appeal have been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield, 444 F.3d at 1333-34. Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, post-service medical records (including treatment records from Cullman Regional Medical Center and the Alabama Department of Corrections), and reports of VA examinations. Records in the Veteran's Virtual VA file (VA's electronic data storage system) have been considered in this decision. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, 18 Vet. App. 112; Quartuccio, 16 Vet. App. 183; and Dingess, 19 Vet. App. 473. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Id.; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Factual Background At the outset, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Historically, service connection was established for residuals of right orbital and macular fractures (claimed as multiple trauma to the face and concussion) by rating action of May 2001. The RO assigned a 10 percent rating effective April 7, 2001 (under Diagnostic Codes 8045-8207). In a February 2004 rating action the RO proposed to reduce the 10 percent rating in effect for residuals of right orbital and macular fractures to 0 percent, explaining that the condition was subject to a routine future examination, but that no evidence had been received in support of the claim. The Veteran had failed to report for a VA examination scheduled in October 2003. Per the Veteran's request, a new VA examination was scheduled in July 2004, and he did not appear. A December 2004 rating action reduced the evaluation for the Veteran's residuals of right orbital and macular fractures disability from 10 to 0 percent, effective from March 1, 2005. The Veteran appealed that determination. In statements received by the RO in February 2005 and September 2005, the Veteran informed VA that he was incarcerated and could not attend any of the VA examinations scheduled in 2004. A September 2005 statement from the pertinent state department of corrections confirmed that the Veteran had been incarcerated in mid-2004 and was serving a five year sentence, ending in approximately mid-2009. In a Board decision issued in November 2009, it was determined that the reduction of the rating for the Veteran's service-connected residuals of right orbital and macular fractures disability from compensable to non-compensable was improper, and a compensable rating of 10 percent was restored, effective March 1, 2005. In that same Board decision, the related issue of entitlement to a disability rating in excess of 10 percent was remanded for additional evidentiary development. The November 2009 remand requested that the examiner provide an assessment of the degree of impairment due to depression, memory loss, and cognitive impairment associated with TBI, as well as aphasia. In addition, any degree of paralysis of the cranial nerve was to be fully identified, since the Veteran's residuals of right orbital and macular fractures had been rated by analogy to residuals of TBI and to diseases of the cranial nerve. Pursuant to the November 2009 Board remand, a VA examination was conducted in March 2010. At that time, the Veteran reported that he sustained a right orbital fracture, and a maxillary fracture of the maxillary sinus, when struck (as a pedestrian) by an automobile in 1999. His wounds were sutured externally; and he did not have any bone surgery; nor had he had laser treatment of his eyes. The VA examination primarily provided an ophthalmological evaluation. Examination revealed right eye visual acuity (corrected and uncorrected), was 20/15 -1(far) (20/15 corrected), and 20/15 (near); left eye (corrected and uncorrected) was 20/15 (far), and 20/15 (near). He had minimal myopic and astigmatic error. Muscles were normal bilaterally, and the fields were attached and were normal. An external examination was clear. There was a small scar at the right end of the right eyebrow, which was minimal and well-healed. He did not have enucleation, nystagmus, lens removal, or conjunctivitis. Tonometry was 17 on the right and 18 on the left. Slit lamp examination was clear. Funduscopic examination was normal with a cup-to-disc ratio of 0.3 bilaterally. He was diagnosed with trauma of the right superior orbit and right maxillary sinus, no visual residuals, or refractive error. The examiner opined that with 20/15 vision, ophthalmologically the Veteran would have no difficulty working. Medical records from Cullman Regional Medical Center and the Veteran's correctional records fail to reveal treatment for any associated symptoms of residual disability of right orbital and macular fractures. In a January 2011 VA examination for the brain and spinal cord, the Veteran reported that (at that time) he did not have any pain from the residual effects of fractures of the orbit and macular. He reported no history of brain or spinal cord trauma or brain or spinal cord neoplasm. He reported a history of headaches that occurred daily or more often with a duration of minutes; the severity of which did not limit ordinary activity. There was no history of dizziness, weakness, paralysis, dysesthesias, paresthesias, numbness, rigidity, cerebrovascular accident, vision problems on screening, decreased sense of taste or smell, speech problems, balance or coordination problems, cognitive impairment, impaired bladder or bowel function, difficulty breathing, fatigability, fever, mobility problems, insomnia, or tinnitus. A detailed reflex examination found the Veteran had normal peripheral nerve reflexes, bilaterally, and plantar flexion (bilaterally) was normal. On sensory examination #1 the ulnar nerve (upper extremity) was normal with no dysesthesias. On sensory examination #2 the peroneal nerve (lower extremity) was normal with no dysesthesias. Motor testing results were 5/5 with normal muscle tone and no muscle atrophy. There were no autonomic nervous system problems that had not been addressed. He had no gait abnormalities, imbalance or tremors, evidence of fasciculations, evidence of cognitive or psychiatric impairment, speech impairment, loss of sense of taste or smell, evidence of limitation of motion of one or more joints, or evidence of bowel or bladder impairment. The diagnoses were right orbital fracture without residual effects, and TBI without residual effects. It was noted that the Veteran was employed full-time as a computer programmer for the past one to two years, and had lost no time from work during the past 12 months. He stated that he was working full-time and going to college full-time. He knew the amount of his benefit payment and he handled payments prudently. He also knew the amounts of his monthly bills; he personally handled money and paid bills. He was capable of managing his financial affairs. On January 2011 examination of the cranial nerves, the Veteran reported that initially following the automobile accident,(when struck by a car), he had problems with memory loss; but at the time of the examination, he reported that he was not having any memory problems. He stated that he had not noticed any change from before he had the accident. His course since the onset was stable and he was not receiving treatment at that time. He did not have a history of hospitalization or surgery. He had no facial symptoms (i.e., no sensation of lancinating or electric shock pain, involuntary painless facial twitching or spasm, or weakness or paralysis of facial muscles. He did not have symptoms associated with the mouth, throat, nose, ear and hearing, neck and shoulder. On sensory examination of cranial nerve V (trigeminal nerve) pain, light touch and temperature of the forehead, cheeks, chin, and entire left and right sides, were normal. Motor examination of the trigeminal nerve function of the temporal and masseter muscles on biting hard, was symmetric and the jaw remained in midline on function of temporal and masseter muscles on opening his mouth. Corneal reflex was present. Examination of cranial nerve XI (spinal accessory nerve) the trapezius and sternocleidomastoid muscles were asymmetry, there was no atrophy, and turning the head against resistance was normal on both sides. On examination of cranial nerve VII (facial nerve), muscles of facial expression showed overall symmetry, eyebrow lifting, forehead wrinkling, smiling, showing teeth, puffing out cheeks, closing eyes to resistance, frowning, and tearing, bilaterally were normal. On examination of cranial nerve XII (hypoglossal nerve) the tongue was normal in appearance, there was no atrophy, or fasciculations, the position of the tongue on protrusion was midline and speech was normal. On examination of cranial nerve IX (glossopharyngeal) and cranial nerve X (vagus), gag reflex was normal. The elevation of the palate on saying "Ah" or yawning was symmetrical. The ability to swallow was normal. His voice was normal and there was no dyspnea or stridor. The diagnosis was TBI with no residual effects. X-rays of the cervical spine showed intervertebral disc spaces and vertebral body heights were preserved, with no malalignment and prevertebral soft tissues were in normal limits. Views of the orbits revealed no obvious displaced fracture. On February 2011 VA mental disorder examination (to assess the degree of impairment due to depression, memory loss, and cognitive impairment associated with TBI as well as aphasia), the Veteran's general appearance was clean, and neatly groomed. His psychomotor activity was unremarkable. His speech was spontaneous, clear, coherent, and no evidence of aphasia. His attitude toward the examiner was cooperative and friendly. His affect was appropriate and his mood was good. His attention was intact; but he was not able to do serial 7's. He was able to spell a word forward and backward. He was oriented to person, time and place. His thought process and content were unremarkable. His remote, recent, and immediate memory was normal and he denied any problems with memory. He did not have delusions, hallucinations, or homicidal or suicidal thoughts. He did not have obsessive/ritualistic behavior. He displayed average intelligence; he understood the outcome of behavior and that he has a problem. He reported having a lack of sleep related to his schedule and denied any problems falling or staying asleep. He had inappropriate behavior; and he had panic attacks. He interpreted proverbs appropriately. He had good impulse control. He could maintain minimum personal hygiene. He denied any problems with occupational functioning. He was working full-time for a corporation in quality assurance and programming. He had an upcoming marriage and was attending school full-time. The diagnosis under Axis I was "None". His Global Assessment of Functioning (GAF) score was 90. In a December 2011 VA examination (residuals of TBI) report, the Veteran was diagnosed with TBI. He reported that the onset of TBI and residuals thereof were the result of the automobile accident while in service (he was hit (as a pedestrian) while walking on a sidewalk). He lost consciousness and sustained an abrasion to the right forehead and cheek and right macular and orbital fractures. No surgical recommendations were made but he did have his lower right canine tooth replaced. He denied any residual effects at the time of the examination. He had no complaints of impairment of memory, attention, concentration or executive functions. His judgment was normal, social interaction was routinely appropriate, and he was oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. There were no subjective symptoms, or neurobehavioral effects. He was able to communicate by spoken and written language and to comprehend spoken and written language. He had normal consciousness. It was noted that he had no subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI (such as migraine headaches or Meniere's disease). It was further noted that residuals attributable to a TBI had no impact on his ability to work. On October 2012 VA (residuals of TBI) examination, the Veteran was diagnosed with TBI. He reported that since the automobile accident (when he sustained right orbital and macular fracture) he has had sinus problems (nasal congestion and runny nose) year round. He stated that he had two teeth knocked out, (one was a wisdom tooth and he had all four pulled) and one lower tooth replaced with an implant. He did not have cranial nerve damage or significant headaches. He stated that his wife has told him that his memory is not good (he forgets dates and names). He is already service-connected for tinnitus. He noted sleep problems, but indicated that they were not related to TBI. On assessing the facets of TBI-related cognitive impairment and subjective symptoms of TBI, it was noted that the Veteran complained of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. His judgment was normal. He was oriented to person, time, place, and situation. His motor activity, and visual spatial orientation were normal. There were no subjective symptoms. There were no neurobehavioral effects. The Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. He had normal consciousness. The examination report noted tinnitus as a residual of TBI. It was noted that the Veteran had scars that were not painful or unstable or that covered an area greater than 6 inches. There was no functional impact on the Veteran's ability to work attributed to residuals of TBI. On October 2012 VA examination for sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx, it was noted that the Veteran had not been diagnosed with a sinus, nose, throat, larynx, or pharynx disorder. X-rays of the sinuses showed no evidence of a paranasal sinus air fluid level. The visualized paranasal sinuses appeared clear. There was a dental prosthesis at the right anterior mandible. No displaced facial fractures were evident. Legal Criteria and Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Moreover, 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The November 2011 Board remand requested the RO to apply the former and revised criteria of Diagnostic Code 8045 since the Veteran's service-connected residuals of right orbital and macular fractures have also been rated by analogy to residuals of TBI. VA amended the rating schedule for evaluating brain disease due to trauma or TBI under Diagnostic Code 8045. See 73 Fed. Reg. 54,693 - 54,708 (Sept. 23, 2008). ('The amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date.'). A Veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). See 38 C.F.R. § 4.124a, Note (5). In this case, in an informal hearing presentation of May 2011, the Veteran's representative specifically requested that the Veteran's disability be evaluated under the revised criteria. Under the previous regulation, Diagnostic Code 8045 provides for the evaluation of brain disease due to trauma. 38 C.F.R. § 4.124a (2008). This diagnostic code specifies that purely neurological disabilities are rated under the applicable diagnostic code. Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma) and may not be combined with any other rating for a disability due to brain trauma. A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 may not be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Id. Under the amended regulation, Diagnostic Code 8045 provides for the evaluation of TBI. 38 C.F.R. § 4.124a (effective October 23, 2008). There are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A Veteran whose residuals of a TBI are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008, may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62(1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Residuals of Right Orbital and Macular Fractures The Veteran contends that a disability rating in excess of 10 percent is warranted for his service-connected residuals of right orbital and macular fractures. As noted above, his service-connected residuals of right orbital and macular fractures disability, have been assigned a 10 percent disability rating, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045 (residuals of TBI), and Diagnostic Code 8207 (paralysis of the fifth (trigeminal) cranial nerve). Hyphenated diagnostic codes (8045-8207) are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Under Diagnostic Code 8207, moderate incomplete paralysis warrants a 10 percent rating. Severe incomplete paralysis warrants a 20 percent rating and complete paralysis warrants a 30 percent rating. Evaluation of paralysis is dependent upon relative loss of innervation of facial muscles. Words such as "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. After a review of the evidence, the Board finds that the Veteran's service-connected residuals of right orbital and macular fractures disability is manifested by no more than moderate incomplete facial paralysis. Notably, when the Veteran was examined by VA in March 2010 his muscles were normal bilaterally and he had no visual residuals, or refractive error. In fact the examiner noted that with his visual acuity he would have no difficulty working. On VA examination of the brain and spinal cord in January 2011 he reported that he did not have any pain from the residual effects of fractures of the orbit and macular. And while he reported a history of headaches, he stated that the severity of his headaches did not limit his ordinary activity. That examination also revealed normal reflex and sensory examinations and normal motor testing. He was diagnosed with right orbital fracture without residual effects. The January 2011 cranial nerves examination revealed he was not having any memory problems and his course since the onset of the disability was stable, and he was not being treated for the disability. Examination of the cranial nerves showed essentially normal results. The February 2011 VA mental disorder examination revealed he did not have a psychiatric impairment. Notably, his GAF score was 90, which is indicative of absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns. See American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Furthermore, on VA TBI examination in December 2011 he denied any residual effects of TBI and it was noted that any residuals attributable to a TBVI had no impact on his ability to work. Lastly, on October 2012 VA TBI examination he had subjective complaints of mild memory loss, attention, concentration, or executive functions, otherwise TBI-related cognitive impairment was normal. It was also noted that there was no functional impact on the Veteran's ability to work attributed to residuals of TBI. Based upon the foregoing, the description of symptoms (or lack thereof) of the Veteran's disability has not been productive of severe incomplete paralysis in any of the examination reports. Accordingly, the Board finds that the requirement of severe incomplete paralysis for a rating in excess of 10 percent for service-connected residuals of right orbital and macular fractures under Diagnostic Code 8207 has not been met. 38 C.F.R. § 4.124a, Diagnostic Code 8207. Further, the Board observes that in conjunction with the increased rating claim for residuals of right orbital and macular fractures, a VA eye examination was conducted in March 2010, a VA brain and spinal cord and cranial nerves examinations were conducted in January 2011, and a VA examination for mental disorders was conducted in February 2011. Such examinations were essentially deemed inadequate for rating the Veteran's service-connected residuals of right orbital and macular fractures under the new criteria (Diagnostic Code 8045). In December 2011 a VA TBI examination was conducted. The Board also found that examination inadequate on the bases that there was not substantial compliance with the November 2011 Board remand orders and the matter was again remanded for another examination. The Veteran was re-examined by VA in October 2012. At that time he again underwent a VA evaluation for residuals of TBI. The examiner diagnosed TBI and noted that in the Veteran's symptoms were manifested by a complaint of mild memory loss, attention, concentration, or executive function, without objective evidence on testing. This equates to a level "1" (10 percent rating) under the cognitive impairment and subjective symptoms facets. While a rating in excess of 10 percent for residuals of right orbital and macular fractures under Diagnostic Code 8207 is not warranted, the Board points out that the Veteran was granted service connection for TBI as secondary to the service-connected disability of residuals of right orbital and macular fractures (claimed as multiple trauma to the face and concussion) by the RO in February 2013, and assigned a separate 10 percent disability rating. As noted above, the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. However, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban, 6 Vet. App. at 261- 62. Moreover, it is recognized under Diagnostic Code 8045, Note (1) that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, a separate rating may be assigned for each disability if the manifestations of such disabilities are clearly separable, as is the case here. Traumatic Brain Injury (TBI) It is significant in this case that prior to October 12, 2012, the Veteran's TBI and residuals of right orbital and macular fractures were combined (under Diagnostic Code 8207(diseases of the cranial nerves)) because the evidence of record failed to show he had any compensable symptoms for a rating under Diagnostic Code 8045 for residuals of TBI. In February 2013 the RO granted service connection for TBI as secondary to the service-connected disability of residuals of right orbital and macular fractures and assigned a separate 10 percent rating effective October 12, 2012 (date of the VA examination showing the Veteran had symptoms of a TBI). Prior to October 12, 2012 the medical evidence of record at that time was silent for any diagnoses of residuals of a TBI. On May 2010 VA examination the Veteran was diagnosed with trauma, right superior orbit and right maxillary sinus, no visual residuals, or refractive error. On January 2011 VA examination he was diagnosed with right orbital fracture without residual effects and TBI without residual effects. On February 2011 VA mental disorder examination (to assess the degree of impairment due to depression, memory loss, and cognitive impairment associated with TBI), there was no pathology found. The diagnosis under Axis I was "None". On December 2011 VA (residuals of TBI) examination, the Veteran was diagnosed with TBI. However, the Veteran denied any residuals effects of a TBI at the time of the examination, and no mental, physical or neurological impairment, or residuals attributable to a TBI (such as migraine headaches or Meniere's disease) were diagnosed. The medical evidence, for the period prior to October 12, 2012, shows that the Veteran was diagnosed with TBI, and it also shows that no TBI residuals (with the exception of tinnitus, for which the Veteran is already service-connected) were manifested during that period (see January 2011 and December 2011 VA examinations). As noted, because there were no residuals of a TBI shown during that time, the RO combined the ratings for the Veteran's TBI and residuals of a right orbital and macular fractures. Inasmuch as the Veteran had no residuals of a TBI prior to October 12, 2012 a compensable rating for residuals of a TBI is not warranted for that period. Based on findings on October 12, 2012 VA examination, the RO assigned a separate 10 percent rating (level 1) under the cognitive impairment facets, for a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. 38 C.F.R. § 4.124a, Diagnostic Code 8045. As noted above, the evaluation assigned for cognitive impairment and other residuals of TBI, not otherwise classified, is based upon the highest level of severity for any facet as determined by examination. Only one evaluation is assigned for all the applicable facets. To obtain the next higher rating (40 percent), a severity level of "2" would have to be assigned for one of the 10 facets discussed above. That is, there must be objective evidence on testing of mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment; and such is not shown here on examination. On October 2012 VA examination, "1" is the highest level of severity noted for any of the facets, which was assigned for only one of the facets listed. Accordingly, on review of the various facets (of Diagnostic Code 8045) reported in the October 2012 VA TBI examination report, the VA examiner found evidence of normal judgment; and as such, a level of severity of 0 is warranted as the Veteran has not been found to have impaired judgment. In considering the social interaction facet, social interaction was routinely appropriate. As such, a level of severity of 0 is warranted as the Veteran has not been found to have impaired social interaction. In considering the orientation facet, the Veteran was always oriented to person, time, place, and situation. As such, a level of severity of 0 is warranted as the Veteran has not been found to have impaired orientation. In considering the motor activity (with intact motor and sensory system) facet, motor activity was normal. As such, a level of severity of 0 is warranted as the Veteran has not been found to have impaired motor activity. In considering the visual spatial orientation facet, visual spatial orientation was normal. As such, a level of severity of 0 is warranted as the Veteran has not been found to have impaired visual spatial orientation. In considering the subjective symptoms facet, there were no subjective symptoms. As such, a level of severity of 0 is warranted. In considering the neurobehavioral effects facet, the VA examiner indicated that the Veteran had no neurobehavioral effects. As such, a level of severity of 0 is warranted as the Veteran has not been found to have impaired neurobehavioral effects. In considering the communication facet, the Veteran was said to be able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. As such, a level of severity of 0 is warranted. In considering the consciousness facet, consciousness was normal. As such, a level of severity of 0 is warranted. Therefore, based on the October 2012 VA findings, a rating in excess of 10 percent is not warranted because none of the 10 facets is assigned a level of severity of "2." Additionally, the October 2012 examiner noted that there was no functional impact on the Veteran's ability to work attributed to residuals of TBI. Accordingly, the Board finds that the evidence does not support an increased disability rating from October 12, 2012 for symptoms of the Veteran's residuals of TBI under Diagnostic Code 8045. 38 C.F.R. § 4.124a. In summary, the Board has reviewed the entirety of the evidence of record, and finds that none of the evidence of record probatively contradicts the findings discussed above, nor does any of the evidence of record otherwise probatively show that the criteria for an increased rating are met in this case. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal have been more severely disabling than the assigned disability ratings reflect. The Board has carefully considered the Veteran's contentions. Lay testimony is competent to describe such complaints as the frequency and nature of symptoms, such as memory loss. The Veteran has not specifically stated that he experiences severe incomplete paralysis associated with residuals of the right orbital and macular fractures, or facets of TBI related to cognitive impairment of level "2" severity. Beyond this, the decisive questions presented by the rating criteria in these matters are medical in nature, as discussed above. Finally, in making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence with regard to any adverse determination in this decision. The preponderance of the most probative evidence does not support assignment of an increased rating for residuals of the right orbital and macular fractures or TBI. To that extent, as the preponderance of the evidence is against the claims, the benefit-of-the- doubt doctrine does not apply and the claims must be denied. See Gilbert, 1 Vet. App 49. The Board has also considered whether referral for extraschedular consideration is indicated for the Veteran's service-connected residuals of right orbital and macular fractures and TBI disabilities. There is no objective evidence, or even allegation, suggesting that the schedular criteria are inadequate to rate such disability or that the disability pictures presented are exceptional. The symptoms and associated restrictions of function shown are fully encompassed by the schedular criteria. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the record shows the Veteran is employed full-time. On VA examination in February 2011 he reported he was employed with a corporation, working in quality assurance and programming; he denied any problems with occupational functioning. On VA examination in October 2012, it was noted that he was employed in a steel plant as a fitter with no limitation to his employability. Thus, the matter of a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a disability rating in excess of 10 percent for the service-connected residuals of right orbital and macular fractures is denied. Entitlement to a compensable rating for TBI prior to October 12, 2012 and an increased rating in excess of 10 percent thereafter is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs