Citation Nr: 1328104 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 05-21 682A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for residuals of a head injury, to include memory problems. 2. Entitlement to a rating in excess of 10 percent for condyloma acuminata. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from July 1951 to July 1953. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from March 2004 and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana, that denied service connection for an acquired psychiatric disorder (posttraumatic stress disorder (PTSD)) and granted a 10 percent rating for condyloma acuminata effective from April 23, 2003, and denied service connection for residuals of a head injury, including memory problems, respectively. In a November 2012 decision, the Board found that new and material evidence was received to reopen the Veteran's claim for service connection for a psychiatric disorder. At that time, the Board remanded the Veteran's claims for service connection for an acquired psychiatric disorder, to include PTSD, and residuals of a head injury, including memory loss, and an increased rating for condyloma acuminata, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. Then, in a July 2013 rating decision, the AMC granted service connection for an anxiety disorder, not otherwise specified (claimed as an acquired psychiatric disorder, including PTSD). The AMC's action represents a full grant of the benefits sought as to the Veteran's claim for service connection for an acquired psychiatric disorder including PTSD. Following issuance of the July 23, 2013 supplemental statement of the case (SSOC), the Board received a July 24, 2013 VA treatment record relevant to the claim of service connection for residuals of a head injury currently on appeal. However, in July and August 2013 signed statements, his representative waived initial review of such new evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2013). As such, the Board may proceed to adjudicate the Veteran's remaining claims on appeal. Please note 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 evidence of record preponderates against a finding that the Veteran has residuals of a head injury, including memory loss, that had its clinical onset in service or is otherwise related to his active duty. 2. The Veteran's service-connected condyloma acuminata is manifested by subjective complaints of pain and itching; it is not productive of disfigurement of the head, face or neck; does not exceed an area of 6 square inches; there is no instability; and, it does not cause limitation of function. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a head injury, including memory loss, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103(A), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for a rating in excess of 10 percent for the Veteran's service-connected condyloma acuminata have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7819-7804 (2008 and 2012) (effective prior to and after October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the Veteran was sent letters in June 2003, March 2008, and November 2012 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The March 2008 notice also explained how VA assigns an appropriate disability rating or effective date. Although complete notice did not precede the adverse determination on appeal with respect to the increased rating claim, claim notice was ultimately issued and was followed by a readjudication, most recently in July 2013. Thus, any notice deficiency has been cured. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Some of the Veteran's service treatment records and personnel records are unavailable from the National Personnel Records Center (NPRC). A February 2004 RO file memorandum detailed VA's efforts to obtain the Veteran's service personnel records and concluded that these records were unavailable. Moreover, in March 2008, the NRPC reported that the Veteran's personnel records were presumed destroyed in a fire and, in March 2013, the NPRC advised the AOJ that some of his service treatment records were presumed destroyed in a fire. The Board recognizes that there is a heightened obligation to assist the Veteran in the development of his claim, a heightened obligation to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases. Russo v. Brown, 9 Vet. App. 46 (1996). All reasonably identified and available VA and non-VA medical records have been obtained. A review of the Veteran's Virtual VA electronic file reveals VA treatment records, dated to July 2013, also considered by the Board regarding the claims for service connection for residuals of a head injury and an increased rating for condyloma acuminata currently on appeal. The Veteran was afforded VA examinations in June 2003 and October 2009 regarding his claim for an increased rating for condyloma acuminata and the examination reports are of record. As noted above, in November 2012, the Board remanded the Veteran's case to the RO for further development that included providing him with a requisite duty to assist letter regarding his claims on appeal, obtaining administrative decisions and records considered by the Social Security Administration (SSA), contacting the NPRC and requesting hospital records regarding his treatment at Naha Port Facility in Okinawa, Japan, obtaining recent VA treatment records dated since July 2010, and scheduling VA psychiatric, neurologic, and skin examinations. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a court or Board remand). In the context of an examination, there is no Stegall violation when an examiner makes the ultimate determination required by the Board's remand, because such determination constitutes substantial compliance. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) Here, there has been substantial compliance with the Board's 2012 remand, as the Veteran was provided with a requisite duty to assist letter in November 2012. According to a May 2013 Report of General Information, SSA personnel advised a RO representative that the Veteran received age-related benefits, not disability benefits. In March 2013, the NPRC advised the RO that there were no records available regarding the Veteran's hospital treatment at the Naha Port Facility in Okinawa. Also in March 2013, the NPRC reported that it was unable to provide records from the Office of the U. S. Surgeon General as it required the requested date range to be within 90 days. In an April 2013 letter, the RO requested that the Veteran return a completed NA Form 13055 and provide the specific dates of his treatment in service, to at least the month or year. He did not respond and did not submit the completed form, as requested. A May 2013 RO memorandum detailed VA's efforts to obtain records of the Veteran's hospital treatment at the Naha Port Facility, formerly N aha Military Port, Okinawa, Japan, and concluded that these records were unavailable. See Russo v. Brown, 9 Vet. App. at 46. VA treatment records, dated to July 2013, were obtained. In November 2012, the Veteran underwent VA skin, psychiatric, and PTSD examinations. In November 2012 and July 2013, VA TBI examination reports were prepared by the recent VA psychiatric examiner. A VA neurologic examination was not performed, as directed by the Board and suggested by the November 2012 VA psychiatric examiner. However, the findings in the November 2012 and July 2013 VA TBI examination reports, along with the July 2013 VA neurology progress note, clearly show that the Veteran does not currently have residuals of a head injury and that the complained of symptoms are attributable to other causes. Thus, there has been substantial compliance with the Board's November 2012 remand and another remand for VA neurologic examination is not warranted. See D'Aries v. Peake, 22 Vet. App. at 105. The Board finds that the June 2003, October 2009, November 2012, and July 2013 VA examination reports are adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and non-VA treatment and examinations. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Factual Background and Legal Analysis The Board has thoroughly reviewed the record in conjunction with this case that includes the Veteran's available service treatment records, VA and non-VA medical records and examination reports, dated from 1953 to 2013, and the Veteran's written statements in support of his claims. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). A. Service Connection for Residuals of a Head Injury, Including Memory Loss The Veteran asserts that he has residuals of a head injury, including memory loss, due to active service. In written statements in support of his claim, including in January 2007 and April 2008, he contends that he experienced an accidental (non-combat) blow to the head from a gun while on active duty in Okinawa in 1953. Thus, he maintains that service connection is warranted for residuals of a head injury, including memory loss. Upon review of the laws and regulations relevant to the Veteran's claim, and after considering the evidence of record, the Board finds that service connection is not warranted. Legal Criteria Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Case law has established that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). More recently, the court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, he is not competent to provide evidence as to more complex medical questions, such as the etiology of neurologic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts Service treatment records do not discuss treatment for a head injury. When examined for release from active duty, in July 1953, neither a head nor a neurologic abnormality was noted. Post-service, in an April 2001 written statement, the Veteran reported that he took Aricept daily. A July 2001 private treatment record shows that he had a past medical history of dementia. VA medical records dated from September 2001 to July 2013 reveal that in September 2001, the Veteran complained of recent life stresses with sporadic short term memory loss. The initial assessment included memory loss of unknown etiology. In November 2001, the Veteran and his fiancée were concerned with his continuing problem with short-term memory loss. He also had symtoms suggestive of a seizure-type activity with absent seizures and postictal symtoms. Results of a computed tomography (CT) scan of his brain performed that month were interpreted as a normal study. In January 2002, the Veteran was evaluated in the VA outpatient neurology clinic for episodes of "absences" as well as a problem with memory. Reportedly, over the last year he had episodes where he complained of bad taste, nausea, and stomach upset, then had a blank expression, would not converse, and was slow to respond. His spells reportedly occurred when he was excited or upset and occurred about once a month. Results of an electroencephalogram (EEG) performed at the time were normal. According to a January 2002 VA psychology progress note, when the Veteran was initially seen, a mental status evaluation showed that he was disoriented and had short and long term memory loss. He denied recent loss of consciousness or severe assaults to the head. An April 2002 VA neurology progress note recounts that results of the January 2002 EEG, and a single-photon emission computed tomography (SPECT) brain scan performed in March 2002, were normal as was a previously performed CT scan of the Veteran's brain. It was thought that the Veteran may have pseudodementia with cognitive impairment on a psychologic/psychiatric basis. A June 2002 VA psychological evaluation found some short-term memory impairment. In July 2002, a VA psychiatrist noted that the Veteran had chronic memory problems for two or three years and was unsure if they were due to stress. It was noted that the Veteran did not benefit from taking Aricept and took himself off the drug shortly after it was prescribed. Recent diagnostic tests (including a CT scan of his brain and a SPECT scan) were normal and neurologists concluded that the Veteran had "pseudodementia". On evaluation, mild long and short term memory deficit throughout the interview was noted. A June 2003 VA neurology clinic progress note shows an assessment of pseudodementia and the Veteran was referred for psychiatric treatment. The clinical impression was likely pseudodementia with no progressive deterioration of cognitive function over time and less likely Alzheimer's dementia. A June 2004 VA neurology clinic progress note indicates that the Veteran's memory problem improved slightly since his last visit. The clinical impression was underlying neuropsychiatric disorder/psychomotor slowing, questionable pseudodementia, or questionable stress seizure disorder. Results of a January 2005 CT scan included mild atrophic changes that could be due to small vessel ischemia. In February 2005, the Veteran's VA primary care physician noted that "memory loss [was] probably related to small [cerebrovascular accident (CVA)] seen on CT scan." In May 2005, a VA psychologist reviewed the Veteran's medical history and noted that, given the probable CVA in the past, both panic/anxiety depression and CVA may contribute to the memory problems. May and July 2005 VA outpatient psychology records reflect the Veteran's concern over changes in his memory. At a mental status evaluation in the Veteran reported mostly short term memory problems but was unable to give any examples of his problem. It was noted that he was diagnosed with "pseudodementia" by neurologists in the past and started on Aricept that he discontinued. Memory screening was planned during a future evaluation. According to a July 2006 VA medical record, the Veteran was seen for a painful right leg. He reported falling in Okinawa and hurting his leg. He was unable to recall how it happened because he was accidently hit on the head with an M1 that caused him to have seizures. In a January 2007 written statement, the Veteran reported that his accident occurred in 1952 and that he went to the clinic at Naha, Okinawa. The other machine gunner's name was B.H.- this was the person who accidentally fired the cleaning rod that hit the Veteran over the right eye. The Veteran indicated that the seizures he now had made it hard for him to recall dates. March 2007 VA outpatient records include the Veteran's complaints of memory problems-he forgot what he was doing. He denied any seizure activity, loss of consciousness or falls. A May 2007 outpatient psychiatric evaluation includes an assessment of major depression, a cognitive disorder, not otherwise specified, and questionable visuospatial issues, non-dominant parietal lobe. The treatment plan included prescribed medication and to consider a dementia workup in the future with psychological testing. June, August and September 2007 VA outpatient psychology notes indicate that the Veteran was oriented and his recent memory appeared to be intact. In June, his remote memory appeared intact and, in August and September, he reported problems with recent long term memory. In December 2007, the Veteran was seen in the VA emergency room and review of his chart showed that he had numerous EEGs that were all negative. Results of a CT scan of the Veteran's brain performed at that time revealed mild atrophy, evidence of small vessel ischemic change, and probable old lacunar infarction on the right. Results of a VA outpatient neurological evaluation performed in February 2008 were normal. In an April 2008 written statement, the Veteran reported that he was stationed in Okinawa, Japan, when he was hit on the left side of his head behind the ear by the barrel of a 50-caliber machine gun. He said that "[t]he blow rendered me unconscious for several minutes and unable to perform my duties". The Veteran stated that he "may have been treated at the medical clinic at Naha, Okinawa sometime possibly in the [s]pring/[s]ummer of 1953." He "believe[ed] that all of [his] problems are a result of the blow to the left side of the head by the barrel of this gun as it was being swiveled to a new position." The Veteran further stated that "because of... seizures and memory loss, I have had a difficult time recalling all the information" the RO requested regarding his accident in service. No focal neurological deficit was reported when the Veteran was examined in the VA neurology clinic in May 2008 and results of a CT scan were reviewed. When seen in that clinic in May 2009, the Veteran reported that his seizures were under control and his memory was not bad. Neurological examination was normal. The Veteran was hospitalized at a VA facility in December 2009 after one episode of passing out. No head injury was reported. Results of a CT scan of his head revealed mild diffuse cortical atrophy, unchanged, right anterior periventricular old ischemic focus, unchanged, interval development of the right thalamus and left basal ganglion, lacunar infarcts. In November 2012, the Veteran underwent VA psychiatric and TBI examinations performed by the same physician-examiner. The examination reports reflect the Veteran's medical history of complaints of dizziness, vertigo, and balance problems in 2008. It was also noted that he was not in control of his spending. Intermittent psychiatric issues were noted, as were the results of psychological testing performed in 2002, revealing chronic paranoid schizophrenia, dysthymic disorder, and a personality disorder, not otherwise specified. Personality testing was positive for a severe personality disorder and moderate to severe levels of anxiety and mild levels of depression. A brain scan was within normal limits and the Veteran had a workup for treatable causes of dementia that was negative. He was seen in the neurology clinic in approximately 2002 with difficulties in thinking and concentration, as well as retarded stream of thought. Further, it was noted that in 2002, the Veteran had reported chronic memory problems for the past two or three years and took Aricept but did not benefit from it. He reportedly had a CT scan and a SPECT scan that were within normal limits, as well as an EEG that was negative for seizure activity. It was noted that the Veteran was reportedly diagnosed with pseudoseizures at that time. A diagnosis of dementia was also rendered in 2002, with disorientation, and short and long-term memory loss. The 2002 VA psychiatrist noted that the Veteran denied any recent loss of consciousness or any severe assaults to the head. He had staring spells and reportedly absence seizures with postictal symtoms, and temporal lobe versus parietal lobe seizure was being considered. The VA examiner also noted the Veteran's November 2012 records (an apparent reference to the Board's November 2012 remand) wherein he reported that he was treated for head injuries while stationed in Naha, Okinawa. It was further noted that, in 2008, the Veteran contended that he was hit on the back of his head while on active duty and that he suffered with residual memory problems, depression, anxiety, sleep problems, and a problem with living his normal life and that he was unable to function. The Veteran reported that he had medical treatment for a head injury while on active duty During the current examination, the Veteran, who was 82 years old, stated that his accident occurred in the 1950s when he was in his 20s. He was cleaning machine guns and was injured over his right eye. The Veteran did not recall much else about what happened. He had no idea of how long the loss of consciousness was. He complained of memory problems, reporting that sometimes he could recall things from 50 to 60 years ago but could not think of more recent events. The Veteran indicated that, in his 70s, he was unconscious for about 4 to 5 hours and developed a seizure disorder. He had some pain or headache that occurred after the accident. Now, he had spells in which he was unable to think or remember. The Veteran currently complained of a headache. He also reported chronic grouchiness, sleep issues, nightmares, flashbacks, and hollering in his sleep. The VA examiner noted that the Veteran had a 10 percent disability rating for "scars" and wondered where the scars where and if there was any evidence that they were related to being near his right eye that would provide some evidence towards a head injury. Upon clinical evaluation, the Axis I diagnoses were mild recurrent, major depressive disorder, an anxiety disorder, with a need to rule out PTSD, and vascular dementia, by history. The VA examiner observed that neurology would be a more appropriate service to determine if the Veteran had a traumatic brain injury or not as his condition was complicated by vascular dementia and a seizure disorder. The VA examiner reviewed the Veteran's medical records and stated that there was no evidence within the records of the injury because of the records being destroyed. According to the VA examiner, the Veteran's dementia and seizures and complaints related to head injury seemed to have developed in the last decade, as opposed to after the head injury that would have occurred around 1950 or 1951. A July 15, 2013 VA TBI examination report, prepared by the recent VA psychiatric examiner, reiterates the information from the November 2012 VA examination reports, discussed above. The examiner noted that results of a recent CT scan were consistent with vascular dementia. The Veteran did not have Pick's or Alzheimer's disease. There was no evidence of trauma. The VA examiner also noted that the Veteran indicated that many of his symtoms were not congruent in time in terms of arising immediately after the head injury, and many of the more significant symtoms such as seizures and dementia did not occur until many years later. In the VA examiner's opinion, "there is not enough evidence to support the diagnosis of [TBI] related to military service." The July 24, 2013 VA neurology progress note shows that a clinic neurologist reviewed the Veteran's medical records, including results of a March 2010 EEG and a January 2013 CT scan of the Veteran's brain, that were normal. The VA neurologist agreed with the recent VA psychiatric examiner that "there is no evidence of traumatic brain injury related to military service." The neurologist stated that there was "no evidence clinically, electrographically and radiologically to support a diagnosis of traumatic brain injury." Analysis The Veteran seeks service connection for residuals of a head injury, including memory loss. Post service medical evidence and the November 2012 and July 2013 VA examination reports show that he has an anxiety disorder, but that there is no evidence of traumatic brain injury related to military service. There is no objective medical evidence to show that he has residuals of a head injury, including memory loss. Moreover, in July 2013, the VA examiner explained that the Veteran reported that many of his symtoms were not congruent in time in terms of immediately after his head injury. Many of his more significant symtoms, such as seizures and dementia, did not occur until later. The examiner opined that there was not enough evidence to support the diagnosis of traumatic brain injury related to military service. A VA clinic neurologist also reviewed the Veteran's records and similarly concluded that there was no evidence clinically, electrographically, and radiologically, to support a diagnosis of traumatic brain injury. See Brammer v. Derwinski, 3 Vet. App. at 225. The VA examiner provided a clear rationale for her opinion. There is no medical evidence of record to contradict the VA examiner's opinion. The Veteran has reported memory loss, a symptom capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). He is competent to report this, and he is deemed credible, as the medical evidence supports his contentions that he has experienced memory difficulties. However, the Veteran is not competent to diagnosis a traumatic brain injury. Indeed, a lay person is only competent to establish a diagnosis in the following very limited circumstances: (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1376-77. In this case, a diagnosis of traumatic brain injury is a complex finding that goes beyond the mere observation of symptoms by a lay person- in other words, the clinical pathology of head injury disorders is not readily recognizable by a layman, such as varicose veins or acne. Moreover, at no time does the record reveal a diagnosis of traumatic brain injury rendered by a medical professional. Thus, the lay evidence here does not establish current disability in this case. Such lay evidence merely establishes a symptom of memory loss, which has been attributed to other medical causes, to include anxiety disorder and vascular dementia, and not to a service-related accident as contended by the Veteran. Again, the Veteran in this case is not competent to determine the etiology of his claimed symptomatology, such as memory loss. As noted previously, the record contains a July 2012 VA examination report in which the examiner, after a thorough review of the record and evaluation of the Veteran, determined that the current symptomatology is not due to any in-service event. A clear rationale was provided for that opinion and it is deemed highly probative. Moreover, no other competent medical evidence refutes that conclusion. In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim of service connection for residuals of a head injury, including memory loss, and his claim must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. B. Increased Rating for Condyloma Acuminata The Veteran asserts that the current manifestations of his service-connected condyloma acuminata are more severe than are represented by the currently assigned 10 percent evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. at 49. The Board observes that the words "slight", "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. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of 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 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Regulations require that where there is a question as to which of two evaluations is to 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 view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran's statements describing the symptoms of his service-connected skin disability are deemed competent. These statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. Legal Criteria Service connection for condyloma acuminata was granted by the RO in a June 1958 rating decision that assigned a noncompensable disability rating under Diagnostic Code 7819. The March 2004 rating decision on appeal assigned a 10 percent rating under Diagnostic Code 7819-7804. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. In this case Diagnostic Code 7819 provides that benign skin neoplasms will be rated as disfigurement of the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804 or 7805) or impairment of function. The additional code is shown after a hyphen. 38 C.F.R. § 4.2. Here, the Veteran's service-connected skin disability is rated analogous to a painful scar under Diagnostic Code 7804. 38 C.F.R. § 4.118. During the pendency of the Veteran's claim, the schedule for rating disabilities concerning the evaluation of scars was amended effective October 23, 2008. A veteran, however, may request review under the revised scars criteria irrespective of whether his or her disability has worsened since the last review. However, those revised provisions are applicable only to claims received on or after October 23, 2008. Because the Veteran's current claim was received prior to that date, those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23, 2008). Nevertheless, while the Veteran's claim was received prior to October 2008, it appears that the RO considered the new amendments in the October 2010 and July 2013 SSOCs. Accordingly, the Board will consider both the prior and current version of the rating schedule in the instant decision. In this case, as documented below, as there have been no findings of disfigurement of the head, face or neck, Diagnostic Code 7800 (either the current or pre-amended version) is not applicable to this analysis. Under regulations pertaining to scars in effect prior to October 23, 2008, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Note (1) to Diagnostic Code 7801 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides a 10 percent evaluation for scars that are superficial and painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See 38 C.F.R. § 4.68 of this part on the amputation rule.) Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118 (effective prior to October 23, 2008). As discussed above, effective October 23, 2008, VA amended criteria for rating the skin so that it more clearly reflects VA's policies concerning the evaluation of scars. Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. This amendment applies to all applications for benefits received by VA on or after October 23, 2008. Essentially, under the new criteria, Diagnostic Codes 7800 to 7802 are applicable to burn scars. Diagnostic Code 7803 was eliminated. Further, Diagnostic Code 7804 provides that, for scars that are unstable or painful, a 20 percent rating is warranted for three or four scars and, a maximum 30 percent rating is warranted for five or more scars. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). Facts The June 1958 rating decision granted service connection for condyloma acuminata (based on a finding of in-service treatment for condyloma acuminata, urethral meatus, in July 1953) and assigned a noncompensable disability evaluation under Diagnostic Code 7819. The March 2004 rating decision assigned a 10 percent rating for the disability under Diagnostic Code 7819-7804, effective from April 23, 2003. The Veteran appealed this determination. VA medical records dated from 2001 to 2013 do not discuss treatment for the disability in question. In June 2003, the Veteran underwent VA examination of his skin. He gave a history of undergoing circumcision with an excision of condyloma acuminate on his penis in 1953 while in service. (The Board notes that a July 1953 VA examination report indicates that the Veteran was uncircumcised and a February 1958 private statement reflects that he was referred for circumcision in January 1954, after service.) The Veteran indicated that, after the surgery, he noticed that his skin pulled on the "underside of his penis with an erection." He never reported this to his physicians. It became uncomfortable for him to have sex due to this soreness and he was impotent for the past four or five years. Since his surgery, it was "uncomfortable for his penis to touch his shorts." The Veteran wore briefs until about ten years ago when he began to wear boxer shorts that felt better and were more comfortable. He denied any recurrence of the condyloma acuminata. On examination, the Veteran was observed to have a normal male penis. On the dorsal surface of the penis, at the junction of the glans penis and the shaft of the penis, there was an atrophic patch of skin that measured approximately 2 centimeters (cm), that had mild hyper pigmentation of the skin texture. It was darker there and atrophic or thinner. The Veteran reported mild sensitivity. He had mildly excessive foreskin remaining on his penis that was able to come down over the glans penis without completely covering it. There did not appear to be any discomfort with this maneuver. There were no penile lesions, breakdowns, and erythema, and no penile discharge. The diagnosis was post circumcision and excision of condyloma acuminatum lesion of the penis in 1953. Per the Veteran's history, there was discomfort when his penis was enclosed in male briefs, but the symptoms were resolved with wearing boxers. He had discomfort with erections until approximately 1998, as the Veteran developed erectile dysfunction at that time and was unable to have an erection. In the VA examiner's opinion, the Veteran's lesion on the dorsum of the penis, that was described as hyper pigmentation, was felt to represent a fungal dermatitis. It was not found to be related to his previous circumcision and excision of condyloma acuminatum. Erectile dysfunction was not related to his condyloma acuminate or his circumcision. In his April 2004 notice of disagreement, the Veteran reported that his service-connected condyloma acuminata caused constant itching that was painful and warranted a 30 percent disability evaluation. In October 2009, the Veteran underwent VA skin examination. He gave a history of developing a penile lesion in 1953 and underwent circumcision with an excision of a condyloma acuminate in 1953 in service. After his surgery, he had excess skin on the underside of his penis whenever he had an erection. He experienced soreness with erection. The Veteran was unable to have an erection for about the last ten years. He denied any other incidents or outbreak of condyloma acuminata. He reported that another residual of his 1953 surgery was that his penis was painful and he had itching but denied any current penile pain or itching. He was not currently, or since initial occurrence, on any treatment for his condyloma acuminatum. The Veteran denied any systemic symtoms such as fever or weight loss. He denied any malignant or benign neoplasms of the skin or urticaria. The Veteran was able to perform his activities of daily living. He was unable to have an erection. While working, he reported no functional or residual limitations due to the condyloma acuminatum. Objectively, examination of the Veteran's penis, testicles, epididymis, and spermatic cord, was normal. There was no penis deformity. He had a circumcised phallus with excess skin noted at the junction of the glans penis and the shaft of the body of the penis. The skin was atrophic, and measured about 2.5 cm in length. The area was hyper pigmented compared to the skin color of his penis. The skin was also thinner. The Veteran reported tenderness with palpation to the skin area. The skin was able to come down over the glans penis without completely covering it. It was able to retract without difficulty. There were no lesions, breakdown, discharge, or erythema noted from the penis. The testicles were within normal size and consistency with no pain or nodules noted. The Veteran did not have any evidence of scarring disfigurement. The percentage of the penis affected was greater than 5 percent but less than 10 percent. There was no exposed area. The percentage of the body affected was less than 5 percent. The diagnosis was post circumcision and excision of condyloma acuminata of the penis, 1953, with residuals per Veteran response as erectile dysfunction. The report also shows that the Veteran retired from his work in a battery plant in 1999 based on age-eligibility. Two color photos of the Veteran's glans penis taken at the time of examination are included with the examination report. In August 2010, the Veteran underwent VA genitourinary examination. His past surgical history was noted, including circumcision and excision of condyloma in 1953. He was a very poor historian due to mild cognitive deficit and a diagnosis of dementia. The Veteran denied incontinence, recurrent urinary tract infections or hospitalization for urinary tract disease or neoplasm. He denied any urological procedures. He had erectile dysfunction since 2000 that was diagnosed in 2005. On examination, there was no penis deformity. The VA examiner opined that the Veteran's current erectile dysfunction was at as likely as not caused by his service-connected condyloma acuminatum. In November 2012, the Veteran underwent VA examination of his skin. The examination report reflects a diagnosis of in-service condyloma acuminata, post treatment, without recurrence or residuals. The examiner recounted the Veteran's medical history and noted that the Veteran and his medical records did not show that his warts recurred. There were no additional treatments or scar revisions. The Veteran reported no additional treatment and was not on medication for the condition or being followed for it. He was a very poor historian secondary to Alzheimer's dementia and the majority of his history was obtained from his claims file and previous examination reports. The Veteran had no clinic visits or hospitalizations in the past year regarding his condyloma acuminata. He denied any recurrence of the warts/condition and no systemic conditions were noted. The VA examiner stated that the Veteran's skin condition did not cause scarring or disfigurement of the neck, head, or face. The Veteran did not have any benign or malignant skin neoplasms. There were no systemic manifestations due to any skin diseases. He was not treated with oral or topical medications for any skin condition, had no treatments or procedures other than systemic or topical medications for exfolliative dermatitis or papelosquamous disorders, and no debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiform, or toxic epidermal necrolysis, in the past 12 months. On examination, the examiner noted that the total body area affected by the Veteran's skin infection was "none." Examination of the Veteran's penis revealed no active infection consistent with viral wart, including the urethral meatus. There was no scarring at the meatus noted. Examination of the Veteran's abdomen revealed no masses, distension, tenderness, hepatospleenomegaly lymph, and inguinal adenopathy. The VA examiner reported that there was no detectable scar noted at the urethral meatus from treatment of the wart. The Veteran's penis revealed a mild redundant foreskin, no active lesions, and no deformity detected. The Veteran's disability did not impact his ability to work. The examiner noted that photographs of the Veteran's glans penis, the site of the in-service condyloma acuminata, were included with the skin examination report. Three color photographs of the Veteran's glans penis taken at the time are of record. In the VA examiner's opinion, it was less than likely that there was any severity of the service-connected condyloma acuminata and it was less than likely that there was any deformity of the penis related to the service-connected condyloma acuminata. The VA examiner stated that current examination "does not find any recurrence or ongoing infection, treatment, procedures or scarring related to the [c]ondyloma acuminata; therefore it is less than likely there is any severity of the condition." According to the VA examiner, "examination of the [Veteran's] penis reveals no significant deformity. While there appears to be some excess foreskin in the flaccid state, this may be required when the organ is erect, especially since [a] circumcision occurred at age 44. There is no scarring noted related to this [service-connected disability] noted on examination." Analysis After reviewing the totality of the evidence, the Board finds that a preponderance of the evidence is against a rating in excess of the currently assigned 10 percent rating. Under the pre-amended criteria, effective prior to October 23, 2008, the Veteran has been awarded the maximum rating available under Diagnostic Code 7804. Further, a higher rating under Diagnostic Code 7801 is not for application because the medical evidence of record does not show that the Veteran's condyloma acuminata exceeds an area of 12 square inches in order to warrant a 20 percent rating. Notably, in June 2003, the VA examiner reported an atrophic patch of skin that measured approximately 2 cm on the dorsal surface of the Veteran's penis, at the junction of the glans penis and the shaft of the penis. In October 2009, the VA examiner reported that the percentage of the Veteran's penis affected was greater than 5 percent but less than 10 percent. There was no exposed area. The percentage of the body affected was less than 5 percent. The November 2012 VA examiner reported that no part of the total body area was affected. Further, Diagnostic Codes 7802 and 7803 also only allow for a maximum disability rating of 10 percent. Thus, a higher rating is not available under these codes. Moreover, Diagnostic Code 7805 is not applicable because there has been no objective finding of limitation of motion of the affected part. The Board observes that the Veteran was awarded a separate non-compensable disability evaluation for erectile dysfunction, which is not the subject of the current appeal. Importantly, the November 2012 VA examination documented no severity of the service-connected condyloma acuminata and the examiner found no deformity of the penis related to the service-connected condyloma acuminata. The VA examiner stated that current examination revealed no recurrence or ongoing infection, treatment, procedures, or scarring related to the condyloma acuminata. According to the examiner, while there appeared to be some excess foreskin on the Veteran's penis in the flaccid state, this may be required when the organ is erect, especially since a circumcision occurred at age 44. The VA examiner reiterated that there was no scarring noted related to the service-connected disability on current examination. Moreover, under the new criteria, effective on and after October 23, 2008, there has been no showing that the Veteran's service-connected condyloma acuminata more nearly approximates three or four painful scars. In fact, in October 2009, the VA examiner reported that the Veteran denied any current penile pain or itching, and did not have any evidence of scarring disfigurement. On the most recent VA examination, in November 2012, the VA examiner reported that there was no detectable scar noted at the urethral meatus from treatment of wart and that there was no scarring noted related to the Veteran's service-connected disability noted on examination. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for condyloma acuminate. Moreover, as the preponderance of the probative medical and other evidence of record is against the claim for an increased rating for condyloma acuminata, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). The Board has also considered whether the Veteran's skin disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here the Board has considered Mittleider and attributed all potentially service-connected symtoms to his service-connected condyloma acuminata disability before considering if the Veteran is entitled to an extra-schedular rating. If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The manifestations of the Veteran's disability include itching and pain. The rating schedule contemplates these symptoms. Again, the rating schedule is intended to compensate for average impairment in earning capacity and for considerable time lost from work commensurate with the percentage evaluations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. Id.; see also Thun v. Peake, 22 Vet. App. at 111. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran repeatedly told VA examiners, most recently in November 2012, that he retired in 1999, due to age and length of service. Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. Further, in view of the holding in Hart and, based upon the record, the Board finds that at no time since the Veteran filed his most recent claim for an increased rating has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER Service connection for residuals of a head injury, including memory loss, is denied. A rating in excess of 10 percent for is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs