Citation Nr: 1326386 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-48 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability rating in excess 30 percent for headaches as a residual of a head injury with chronic brain syndrome. 2. Entitlement to a disability rating in excess 30 percent for anxiety disorder as a residual of a head injury with chronic brain syndrome. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the case was subsequently transferred to the RO in Boston, Massachusetts. The Veteran had a hearing before the Board in May 2012 and the transcript is of record. The case was previously before the Board in August 2012 and December 2012, when it was remanded for additional development including examination of the Veteran and medical opinions. The requested development has been completed. The Veteran incurred a head injury during active service over half a century ago. Service connection has been in effect at a 30 percent disability rating for "chronic brain syndrome (manifested by complaints of nervousness, headaches) since September 1956. As a result of the recent remands by the Board, separate disability ratings have been established for headaches and anxiety disorder, a psychiatric disability. Accordingly, the Board has recharacterized the issues on appeal to reflect that fact that the service-connected disability is assigned separate disability ratings which the Veteran claims do not reflect the current level of severity of his disability. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's headaches as a residual of a head injury with chronic brain syndrome have not been manifested by prostrating episodes productive of severe economic inadaptability for any period. 2. The Veteran's anxiety disorder as a residual of a head injury with chronic brain syndrome is not manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, or by any more severe symptoms. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for headaches as a residual of a head injury with chronic brain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Codes 8045, 8100 (2012) 2. The criteria for a disability rating in excess of 30 percent for anxiety disorder as a residual of a head injury with chronic brain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124a, 4.130, Diagnostic Codes 8045, 9413 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The Veteran has been provided the requisite notice with respect to his claim for an increased disability rating in letters dated April and May 2009, which were prior to the initial RO rating decision denying the benefits sought. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing 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 v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained available service treatment records; private treatment records; VA medical records; and VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present testimony, written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran asserts that the VA Compensation and Pension examinations are inadequate and do not reflect his level of disability. The Compensation and Pension examination reports address the rating criteria and are adequate for rating purposes. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). III. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). 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 (2012). 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; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). 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 v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012). A. History and Factual Background The Veteran served on active duty from September 1952 to September 1956. Service treatment records reveal that he incurred a head injury in an automobile accident in 1954. He was rendered unconscious and had a fractured right mandible (jaw). In January 1957 a VA Compensation and Pension examination of the Veteran was conducted. The Veteran reported having periodic headaches which lasted 30 to 60 minutes. He also reported symptoms of nervousness including: anorexia when upset, nail biting, irritability, and difficulty falling asleep at times. Mental status examination revealed no evidence of impairment of memory, intelligence, train of thought, mental grasp, perception, or ideation. The Veteran was noted to be fully employed. After EEG testing, the diagnosis was chronic brain syndrome due to brain trauma. An April 1957 rating decision granted service connection for chronic brain syndrome (manifested by complaints of nervousness, headaches) at a 30 percent disability rating effective September 1956. A December 2001 VA outpatient treatment record reveals that the Veteran was seen to establish care in the VA health system. He reported that he was a retired federal employee who had been a logistics manager at an Air Force Base. He also reported that he had been married for 37 years, he lived with his wife, and he had two adult children and two grand children. For exercise he reported that he ran 5 miles daily and competed in marathons. He reported sleeping well. He also reported some gradual memory loss over the past few years and was interested in memory testing. Private medical records dated in 2004 and 2005 reveal that the Veteran has a cardiac pacemaker. Specifically a December 2005 private medical record reveals that the Veteran experienced an episode of "near syncope after cataract surgery." The physician indicated it was most likely a vasovagal episode based on past symptoms. The diagnosis was merely "anxiety" and the Veteran was prescribed anti-anxiety medication. In January 2008, VA neuropsychiatric testing of the Veteran was conducted pursuant to his self-reported short term memory loss. After full testing the impression was "normal neuropsychological profile" In contrast to the Veteran's complaints, his strongest performance was on testing of learning and memory. The examiner stated that "although he has likely experienced some normal age-related decline, at this time there is no evidence suggesting that his memory ability is worse than expected for his age . . ." In April 2009, the Veteran filed his claim of an increased rating. He claimed he had symptoms of headaches, dizziness, and memory loss. He claimed that his memory loss was increasing. In April 2009 a VA Compensation and Pension examination for the residuals of traumatic brain injury was conducted. The Veteran reported a history of periodic headaches up to twice a week which last about half an hour and are treated with over-the-counter medication. He reported three incidents of dizziness with decreased blood pressure which were diagnosed as vasovagal and treated with a pacemaker implant. Evaluation revealed that the Veteran was oriented with intact learning and recall. The only deficit noted was in abstraction ability (0/3). He also reported occasional nervousness, restlessness and anxiety. His primary concern was memory impairment but the examiner specifically indicated that testing revealed that the Veteran had a "very mild abstraction abnormality but no memory, attention, concentration or executive dysfunction. The diagnosis was traumatic brain injury with posttraumatic headaches. The examiner indicated that the Veteran's dizziness was secondary to cardiac arrhythmia; no specific rationale was indicated for this, but the private medical evidence of record showing syncopal episodes diagnosed as vasovagal and being treated by pacemaker implant support this opinion. In May 2009, a VA psychiatric examination of the Veteran was conducted. He reported being married to, and living with, his only wife of 42 years and that they had raised two children and the he continued to be socially active including participation on a church board. He reported social activity such as going out to dinner or the movies. He reported retiring after working for 34 years including 25 years as a federal employee. He had no difficulties at work due to psychiatric symptoms. He reported the prior syncopal episodes and he specifically reported that they were determined to be cardiac in nature. The Veteran reported having two distinct types of anxiety. The first was being nervous as a result of a conflict such as an argument with his wife. He indicated that this level of anxiety was 2 to 3 in level on a scale to 10. He indicated that this was experienced daily and was relatively minimal. Second he reported feelings that are "claustrophobic" and he has trouble breathing. He stated that he either had to get up and walk it off, or lie down until the feeling passed. He reported that they lasted about half an hour and occurred once a month. He indicated that these attacks never interfered with his ability to work and that there was minimal social interference. The Veteran also reported complaints of memory problems, but the examiner noted that all objective memory testing of the Veteran revealed an intact memory, including review of the 2008 test results. Mental status examination revealed that the Veteran was cognitively intact. There was no indication of memory impairment. The examiner indicated that the claims file was not reviewed. However, VA medical records were reviewed and the examiner appears to have elicited an accurate history from the Veteran and accurately documented the Veteran's reported psychiatric symptoms. The examiner indicated that the most accurate diagnosis was panic attacks with agoraphobia. A Global Assessment of Functioning (GAF) score of 70 was assigned. A GAF score is based on a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 61 to 70 is reflective of 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. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). In September 2012 another VA Compensation and Pension examination for traumatic brain injury (TBI) residuals was conducted. The examiner reviewed the claims file along with the history of the in-service head injury. Testing of memory, attention, concentration, executive function, judgment, orientation, social interaction, motor activity, communication, and neurobehavioral effects were all normal. Only subjective symptoms of mild anxiety and mild or occasional headaches were noted; they did not interfere with work, daily living, and social relationships. In September 2012 a Compensation and Pension examination for headaches was also conducted. The Veteran reported having frontal headaches which lasted an hour, once or twice a week; he indicated he treated the headaches with over-the-counter medication and the occasional need to lay down. He indicated some nausea with these episodes. He further reported a recent increase in frequency up to three times a week along with an increase in intensity. The examiner indicated that the attacks were not prostrating and did not impact the Veteran's ability to work. In June 2013 the most recent VA Compensation and Pension examinations of the Veteran were conducted. On psychiatric examination, the Veteran reported symptoms of anxiety and headaches had increased. He reported being retired and having an active lifestyle including exercise, and social activities. He did report the recent life stressor of the suicide of his adult son. Mental status examination revealed the presence of anxiety, panic attacks once a week, and sleep impairment. The diagnosis was anxiety related to his medical condition, TBI. A GAF score of 65 was assigned. The examiner indicated that the Veteran's psychiatric disability resulted in "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication." On headache examination the Veteran reported having 3 to 4 headaches a week that last one to two hours. He reported an occasional more severe headache which required him to lay down, and happened approximately once a month. He treated his headaches with over-the-counter medication. The examiner noted prostrating attacks occuring once a month. Finally, on TBI examination the examiner noted a subjective complaint of mild memory loss, but without objective evidence on testing. All other areas tested were normal. A. TBI Criteria It is clear that the Veteran had a TBI during service. Service connection has been in effect for this disability at a 30 percent rating since his separation from service in 1956. Prior to October 23, 2008, brain disease due to trauma under Diagnostic Code 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, was to rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated at a maximum of 10 percent under Diagnostic Codes 9304, "Dementia due to head trauma." This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Codes 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. Part 4, § 4 .124a, Diagnostic Codes 8045 (2008). The Veteran filed his claim for an increased rating in April 2009, accordingly, the current rating criteria for TBI are applicable. Presently, Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, 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 TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 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 TBI. For residuals not listed here 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 § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. 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. Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and 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 TBI Not Otherwise Classified" with manifestations of a co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from " Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Note (5): A Veteran whose residuals of 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 the 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 (2012). After a careful review of the record, the Board finds that the Veteran's disability is more appropriately rated under Diagnostic Code 8100 for headaches and under Diagnostic Code 9413 for anxiety disorder as these Diagnostic Codes contemplate his primary symptoms. In this regard, the Board notes that the Veteran's disability has been manifested by subjective complaints of anxiety, chronic headaches, and complaints of memory loss. To the extent that he claims dizziness is a symptom of his TBI, the evidence of record clearly establishes that these symptoms are cardiac in nature. To the extent that the Veteran asserts he has memory impairment, the objective evidence of record does not establish such memory loss beyond any to be expected based on his age. B. Headaches Migraine headaches are rated under Diagnostic Code 8100. Headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated as 30 percent disabling. A 50 percent rating contemplates migraines with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a , Diagnostic Code 8100 (2012). The evidence of record reveals that at worst the Veteran has headaches 3 to 4 times a week and that they last an hour. Approximately once a month the Veteran experiences a more severe headache which requires him to lay down. There is no evidence that the Veteran's headaches have ever impacted his ability to work or function socially. The evidence of record establishes that the Veteran meets the criteria for the assignment of a 30 percent rating for his headaches. He does not meet the criteria warranting the assignment of a 50 percent rating. The preponderance of the evidence is against the claim for a disability rating in excess of the presently assigned 30 percent rating for service-connected headaches as a residual of a head injury with chronic brain syndrome; there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C.A. § 5107(b) , 38 C.F.R. Part 4, §4.124a, Diagnostic Code 8100. C. Anxiety Disorder The Veteran is assigned a separate 30 percent disability rating for anxiety disorder as a residual of a head injury with chronic brain syndrome. The Veteran's service-connected psychiatric disability is rated under the general rating formula for mental disorders. A 10 percent rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. Part 4, §4 .130, Diagnostic Code 9414. A 30 percent disability 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, recent events). Id. A 50 percent disability rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The symptoms recited in the criteria in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The evidence reveals that the Veteran's anxiety disorder has been at a fairly consistent level since they were diagnosed during service. He has consistent symptoms of daily mild anxiety with a very occasional panic attack lasting up to an hour. His GAF score has consistently been in the range of 65 to 70. By the Veteran's own admission on examination his anxiety did not impact his ability to work before he retired. His symptoms related to his anxiety have maintained at a consistent level described the most recent examiner as 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, recent events). This matches the criteria contemplated by a 30 percent disability rating. 38 C.F.R. §4.130 , Code 9413 (2012). The evidence does not support the assignment of a disability rating in excess of 50 percent for major depressive disorder with erectile dysfunction. At no period of time covered by this appeal has the Veteran's service-connected psychiatric disability alone caused more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. When all of the medical evidence is reviewed, the evidence shows that the Veteran's anxiety disorder as a residual of a head injury with chronic brain syndrome is manifested by anxiety, occasional panic attack, and a Global Assessment of Functioning Scale (GAF) ranging from to 65 to 70. The preponderance of the evidence is against the claim for a disability rating in excess of the presently assigned 30 percent rating for service-connected anxiety disorder as a residual of a head injury with chronic brain syndrome; there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C.A. § 5107(b) , 38 C.F.R. Part 4, §4 .130, Diagnostic Code 9413 D. Final Considerations Consideration has been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service. An extra-schedular evaluation is warranted where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service- connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116 . The schedular evaluations are adequate as the diagnostic criteria adequately address the severity and symptomatology of the Veteran's service-connected headaches and anxiety disorder. Higher schedular evaluations are available upon a showing of additional symptomatology. The schedular criteria for the rating of headaches and psychiatric disabilities contemplate economic inadapability and occupational impairment to employment and. There is no evidence of hospitalization for the service-connected disabilities. There is no credible evidence that service-connected residuals of head injury result in any interference with employment. The evidence indicates that the Veteran was able to maintain full-time employment up until his retirement. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. Lastly, a claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. Again, the medical evidence of record confirms that the Veteran's service-connected disabilities do not result in unemployability. Accordingly, consideration of TDIU pursuant to Rice is not warranted. ORDER A disability rating in excess 30 percent for headaches as a residual of a head injury with chronic brain syndrome is denied. A disability rating in excess 30 percent for anxiety disorder as a residual of a head injury with chronic brain syndrome is denied. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs