Citation Nr: 1328617 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-15 045 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for status post skull fracture and craniotomy. 2. Entitlement to a rating in excess of 70 percent for residuals of a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Wounded Warrior Project ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from September 1990 to March 2009. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's skull fracture wound is most closely approximated by the intermediate range between a quarter and a 50-cent piece. 2. The symptomatology caused by the Veteran's PTSD is largely considered to overlap the cognitive symptomatology otherwise caused by his TBI, but there are cognitive manifestations of the TBI which are sufficiently separable from the symptoms of PTSD that a separate compensable rating may be assigned. 3. The Veteran's PTSD causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but does not cause total social and occupational impairment. 4. The cognitive impairment from the Veteran's TBI that is sufficiently differentiable from his PTSD warrants at most "level 1" impairment on the table of facets of cognitive impairment not otherwise classified. 5. The separable physical symptom residuals from the Veteran's TBI, including hearing, tinnitus, and visual impairment, have already been assigned separate ratings under appropriate Diagnostic Codes. CONCLUSIONS OF LAW 1. Criteria for a 30 percent rating for status post skull fracture and craniotomy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5296 (2012). 2. Criteria for a psychiatric rating in excess of 70 percent for residuals of a TBI have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, 4.130, DCs 8045, 9411 (2012). 3. Criteria for a separate 10 percent rating for cognitive residuals of a TBI that are distinctly separable from the Veteran's PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, 4.130, DCs 8045, 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. In March 2013, the Veteran wrote a statement describing his extensive injuries while bravely serving in Tikrit, Iraq when an anti-tank grenade struck his vehicle. The Veteran has since been service connected for a number disabilities stemming from this incident; and the only issues that remain on appeal before the Board are claims for an increased rating for TBI and for the removal of part of the Veteran's skull. The Veteran indicated in the March 2013 statement that he was satisfied with the 70 percent rating that had been awarded for his TBI. He stated that the only two issues he was continuing to contest were the skull fracture rating and he wanted it recognized that he had been diagnosed with PTSD. Accordingly, as requested by the Veteran, these two issues will be addressed below, and given the complexity of the TBI regulations, the Board will attempt to fully explain how the final ratings were arrived at. Skull Fracture The Veteran is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5296 which evaluates loss of part of the skull without brain hernia. Under this Diagnostic Code, a 10 percent rating is assigned when the loss involves an area smaller than the size of a 25-cent piece or 0.716 sq. in. (4.619 sq. cm.); a 30 percent rating when the loss involves an intermediate area; and a 50 percent rating when the loss involves an area larger than size of a 50-cent piece or 1.140 sq. in. (7.355 sq. cm.). In a March 2013 statement, the Veteran wrote that he believed a 30 percent rating was warranted for this disability. He cited to findings by an Army Medical Board which stated that the defect appeared to be about an inch in diameter and assigned a 30 percent rating. The Veteran submitted photos and suggested that the depression in his skull from the surgery was larger than a quarter. The Board first notes that the ratings assigned by the military are not binding on VA, but does represent evidence that must be considered. However, the Board is persuaded by the finding of the Medical Board that the skull defect was approximately an inch in diameter and involving a full thickness fracture and loss of skull material. This finding appears to be consistent with the photographs the Veteran submitted. As noted, a 30 percent rating is assigned when the loss of skull is between the size of a quarter and the size of a 50-cent piece. This appears to be the case here. Therefore, the Veteran's request for a 30 percent rating is granted. A rating in excess of 30 percent is not warranted as the measurement of the skull loss was noted to approximate and inch, whereas the 50 percent rating would require 1.140 sq. in. The Veteran's own statements would support this finding. TBI The Veteran is currently assigned a 70 percent rating for his TBI, based on a finding that it causes major depression and dementia. It is noted that dementia is considered a cognitive disorder, whereas PTSD is considered to be an anxiety disorder. However, both conditions are evaluated under the General Rating Formula for Mental Disorders. In March 2013, the Veteran wrote that he was satisfied with the 70 percent that he had been granted for his TBI, but he requested a 30 percent rating for PTSD, noting that the Army had rated him at 30 percent for PTSD. He pointed out that he had been diagnosed with PTSD, and indeed medical records submitted with the Veteran's letter confirm that he has in fact been diagnosed with PTSD. In the Physical Evaluation Board record, it was noted that the Veteran had residuals of TBI which were considered to be of a 70 percent disability rating based on moderate cognitive impairment, and that if under stress, the Veteran's emotional reactivity and judgment might be adversely impacted. The Physical Evaluation Board also found that the Veteran despite his TBI and shrapnel wound retained consciousness and even attempted to radio for help, which meant that he remembered much of the trauma and as a result he exhibited symptoms separate from his brain trauma that were consistent with PTSD, including independently triggering occasional decreases in the efficiency of his occupational and social functioning, caused by depressed mood, anxiety, and chronic sleep impairment. The Physical Evaluation Board suggested that the Veteran's PTSD symptoms were commensurate with a 30 percent rating. It is noted that while the Physical Evaluation Board makes recommendations to the military as to how a disability should be rated, such recommendations are not binding on VA, and it is incumbent on VA to evaluate the Veteran's symptomatology within its own specific regulations. The Veteran is currently assigned a 70 percent rating for his TBI residuals disability. The specific caption provided when service connection was granted was major depression and dementia secondary to TBI with headaches (to include cognitive disorder, mood disorder, and sleep disorder). However, as will be discussed, the Veteran's predominant symptoms currently do appear to be the result of PTSD. It is understandable, therefore, why the Veteran would request a separate rating for PTSD. As noted, psychiatric disorders, whether diagnosed as PTSD or as major depressive disorder, are generally rated under the General Rating Formula for Mental Disorders contained in 38 C.F.R. § 4.130. This formula provides varying disability levels intended to capture all of a veteran's psychiatric symptomatology. What this means is that only one rating is assigned for psychiatric impairment, even if multiple disorders were found to be present. Said another way, separate ratings are not available for PTSD and for major depressive disorder. Rather, a single rating is to be provided that takes into account all of the Veteran's psychiatric symptoms, whether caused by PTSD or by depression, and looks to see how all the symptoms impact his social and occupational functioning. This is consistent with VA's policy of avoiding "pyramiding", which is defined as evaluating the same disability under various diagnoses. 38 C.F.R. § 4.14. TBI injuries do provide an exception to this general rule. Specifically, if there is an overlap of manifestations of conditions evaluated under the table titled ''Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified'' with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code, two separate ratings may be assigned. However, the regulations caution that more than one evaluation should not be assigned based on the same manifestations. Therefore, 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. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note 1. In layman's terms, this means that two ratings may be assigned, but only if the symptoms of the psychiatric condition can be clearly separated from the TBI specific cognitive impairment. As will be discussed below, the Board concludes that the Veteran's PTSD causes the most significant impairment, although it does not cause total social and occupational impairment and therefore is appropriately rated at 70 percent. However, the Board believes that while many of the psychiatric symptoms do overlap with the non-psychiatric residuals of the TBI, there is sufficient differentiation to award a separate 10 percent rating based on non-PTSD related cognitive impairment. The Board will now turn to the specific rating criteria. TBI is rated in accordance with Diagnostic Code 8045. The regulations recognize that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: 1) Emotional/behavioral; 2) Cognitive (which is common in varying degrees after TBI), and 3) Physical. The regulations provide that each of these areas of dysfunction may require evaluation; and the Board will therefore address these three areas separately. Emotional/behavioral dysfunction Emotional/behavioral dysfunction is evaluated 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, emotional/behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Here, the Veteran's PTSD appears to be the most significant component of his TBI. However, the Veteran already receives a 70 percent rating based on major depression with dementia and headaches under 38 C.F.R. § 4.130, Diagnostic Code 9304. The Veteran has requested to be rated based on PTSD, and the Board acknowledges the fact that he has diagnosed with PTSD as a result of the same RPG attack which resulted in his TBI. Regardless, whether the Veteran is diagnosed with depression or PTSD, the rating criteria dictates that all of the Veteran's psychiatric symptomatology will be evaluated under the general rating formula for mental disorders. The Board will thus consider whether a rating in excess of 70 percent is warranted for acquired psychiatric disability, to include PTSD. A 70 percent evaluation is assigned when a veteran's PTSD causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a veteran's PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id A veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the criteria ("such symptoms as") provides guidance as to the severity of symptoms contemplated for each rating in addition to permitting consideration of other symptoms particular to the Veteran. Id. In this case, the evidence of record fully supports the 70 percent rating that is assigned. At the Veteran's VA examination in November 2009, the examiner found that his PTSD caused deficiencies in thinking, family relations, work and mood, although not in judgment. However, the examiner specifically found that the Veteran's PTSD did not result in total social and occupational impairment. The VA treatment records support such a conclusion. It is acknowledged that the Veteran has experienced marital problems during the course of his appeal as he has attempted to deal with the devastating impairment caused by his TBI. Nevertheless, he has continued to have relationships with his children, and he has sought several types of counseling with his spouse. Additionally, while it is not suggested that the Veteran is capable of full-time employment, in a May 2012 examination report, it was noted that he worked for a friend about 2-3 days/week doing administrative duties (testing) and keeping the property neat. He did not perform any heavy manual labor. In May 2012, the Veteran was also regularly attending AA meetings and PTSD group therapy at the Vet Center. These facts suggest that the Veteran is capable of at least some social interaction and therefore he is not considered to have total social and occupational impairment. Accordingly, a 100 schedular rating for an acquired psychiatric disability, to include PTSD, is denied. However, as noted above, the Board must now address whether there are any cognitive residuals from the Veteran's TBI which are distinguishable from his PTSD symptomatology. Cognitive 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. Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of traumatic brain injury are evaluated, 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 Traumatic Brain Injury Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" table. With regard to the evaluation of cognitive impairment and subjective symptoms, Diagnostic Code 8045 provides for the following: The table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100-percent disability rating is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall disability rating is to be assigned 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, a 70 percent disability rating is assigned 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 Traumatic Brain Injury Not Otherwise Classified" with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. The rating schedule for evaluating cognitive impairment and other residues of traumatic brain injury not otherwise classified provide that facets of cognitive impairment and other residuals of traumatic brain injury not otherwise classified provide numerical designations based on certain proscribed levels of impairment. These evaluations are set forth as follows: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: 0...No complaints of impairment of memory, attention, concentration, or executive functions. 1...A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. 2...Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. 3...Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Total...Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: 0...Normal. 1...Mildly impaired judgment. For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. 2...Moderately impaired judgment. For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. 3...Moderately severely impaired judgment. For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. Total...Severely impaired judgment. For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations as follows: 0...Social interaction is routinely appropriate. 1...Social interaction is occasionally inappropriate. 2...Social interaction is frequently inappropriate. 3... Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: 0...Always oriented to person, time, place, and situation. 1... Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. 2...Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation. 3...Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Total...Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: 0...Motor activity normal. 1...Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). 2...Motor activity mildly decreased or with moderate slowing due to apraxia. 3...Motor activity moderately decreased due to apraxia. Total...Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: 1...Mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system). 2...Moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS. 3...Moderately severely impaired. Gets lost even in familiar surroundings, unable to use assistive devices such as GPS. Total...Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations as follows: 0...Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. 1...Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. 2...Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations as follows: 0...One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects. 1...One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. 2...One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. 3...One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations as follows: 0...Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. 1...Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. 2...Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. 3...Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs. Total...Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Impairment of consciousness is assigned numerical designations as follows: Total...Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board will now discuss each of the facets of cognitive impairment individually. At a mental health consultation in October 2009, the Veteran reported the following cognitive symptoms: difficulty with attention and concentration, short-term memory loss, word finding difficulty, comprehension problems, difficulty with decision making, problems planning and organizing, slower speed of thinking, getting lost or disoriented even in familiar places, trouble multi tasking, and disorganized or confused thinking. Physically, the Veteran reported dizziness, coordination problems, stuttering or slurring, blurry or double vision, ringing in the ears, headaches, fatigue, sensitivity to bright light and/or loud noise, and tingling or numbness in legs or arms. However, on examination, the Veteran was oriented to person, place and time, cooperative, with normal thought processes and thought content. His memory also appeared to be intact to remote, recent and immediate recollections. Moreover, based on testing, a diagnosis of cognitive disorder was not given. As will be explained below, to the extent that the Veteran experiences cognitive symptoms, they largely overlap with the PTSD symptoms that have already been taken into account in assigning a 70 percent disability rating. The most a cognitive facet could be sufficiently differentiated from the psychiatric impairment is at a level of impairment of 1. Turning to the evidence of record with regard to memory, attention, etc.: In October 2009, the Veteran wrote that he experienced short term memory problems and often forgot to complete tasks. He tired easily and occasionally needed verbal cues to complete tasks. On another occasion in October 2009, the Veteran reported difficulty with attention and concentration, short-term memory loss, word finding difficulty, comprehension problems, and difficulty with decision making. However, on examination, the Veteran's memory appeared to be intact to remote, recent and immediate recollections, and following testing, the medical professional declined to diagnose a cognitive disorder. At a VA examination in November 2009, the Veteran was diagnosed with PTSD and with a cognitive disorder, and it was noted that because the PTSD and cognitive symptoms intertwined - it was not possible to give separate GAF scores. It was noted that depressive symptoms were less prominent, while PTSD symptoms had become more disabling. The examiner stated that there was no dementia and only some memory problems which were residuals of TBI. The Veteran also underwent a VA TBI examination in November 2009. The Veteran voiced a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. In January 2012, the Veteran's memory was again found to be intact, and a medical professional stated that based on testing, a diagnosis of cognitive disorder was not given. In February 2012, it was noted that the Veteran's memory problems persisted, with adequate long term memory, but deficits in short term memory interfering with day to day activities and productivity. As described, the Veteran has reported some memory problems during the course of his appeal, and the Board does not doubt that he does in fact experience some issues with his memory. However, clinical examination and testing has shown that the Veteran maintains significant memory capacity. As such, the Veteran's symptoms are most compatible with a "1" level of impairment for mild loss of impairment, attention, concentration or executive functions without objective evidence on testing (as noted clinical testing consistently found good memory capacity). A "2" is not warranted as the objective evidence of memory loss has not been replicated, and to the extent that memory loss is shown impairment of long and short term memory is one of the symptoms that is specifically contemplated in the relevant psychiatric Diagnostic Code 4.130. As such, to the extent that the memory loss is objectively demonstrable, it is largely considered to be covered under the rating for the Veteran's PTSD. Moreover, while memory problems were associated with the Veteran's TBI, the testing was routinely normal and thus not suggestive of level 2. The second category is judgment. However, throughout the course of the Veteran's appeal his judgment has been evaluated as normal, and he has not shown any problems with impulse control. For example, judgment was found to be normal at a VA TBI examination in November 2009. Likewise, at treatment sessions in January 2012 and again in February 2012, the Veteran's insight and judgment were again found to be good. Another February 2012 treatment session also noted that his judgment was adequate. The Veteran has also demonstrated considerable strength of character during the course of his appeal, identifying the need to seek counseling for alcohol abuse, and remaining sober throughout the course of this appeal. These highly commendable actions speak to his capacity to exercise good judgment. Additionally, while the Veteran has experienced marital problems, he has sought counseling for this. As such, it would appear that the Veteran's judgment is normal and a "0" is assigned. Social interaction is also an area that is to be evaluated. However, it is noted that the Veteran's psychiatric disability is rated primarily on social and occupational impairment. As such, the Board believes that because the Veteran's PTSD is seen as the predominant disability, and because the Veteran's social impairment is a leading factor in the psychiatric rating that is assigned, the Board concludes that to assign a separate rating for social impairment from cognitive injury would constitute pyramiding and is thus prohibited. 38 C.F.R. § 4.14, 4.124a, Diagnostic Code 8045. With regard to orientation, the evidence of record consistently notes that the Veteran was oriented to person, place and time. Examples of this are found in the VA examination reports from July 2008 and in numerous treatment records. The Veteran underwent a mental health consultation in October 2009 at which he reported getting lost or disoriented even in familiar places; but even at this evaluation he was found to be oriented to person, place and time. Similarly, at a VA PTSD and TBI examinations in November 2009, the Veteran was again found to be oriented to person, place and time. Likewise, he was found to be oriented to person, place and time at a February 2012 treatment session. As such, a "0" rating appears to be the most appropriate for orientation. Motor activity was also normal whenever it was tested during the course of the appeal. For example, in July 2008, neurological examination of the upper and lower extremities showed slightly diminished reflexes, but motor and sensory functioning were within normal limits. There was no paralysis or autonomic nervous system problem. In September 2009, the Veteran had a TBI consultation at which motor and sensory testing was normal. At the November 2009, VA TBI examination, sensory and motor testing was normal, with normal muscle tone and no atrophy. Furthermore, to the extent that the Veteran has experienced apraxia, it is at most mild, as it was not specifically noted on examination. Therefore, it is felt that the Veteran's motor activity was normal most of the time and thus a level of impairment beyond 1 is not warranted. With regard to visual spatial orientation, as noted the Veteran has reported occasionally, such as at a mental health consultation in October 2009, that he has problems getting lost or disoriented even in familiar places. This complaint was investigated in November 2009, however, no cognitive disorder was diagnosed based on this complaint; and there has been no indication that the Veteran is so impaired as to be unable to use a GPS or similar device. As such, the evidence does not support a finding of moderate impairment that would warrant a level of impairment above 1. The Veteran has reported a number of subjective symptoms, such as dizziness and headaches. These are clearly consistent with category "1" which contemplates daily mild to moderate headaches, tinnitus, insomnia, light hypersensitivity; all symptoms which the Veteran experiences. However, category "2" is not warranted as it is not shown that the Veteran experiences three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or family/other close relationships. The regulations provide that examples of this include marked fatigability, blurred or double vision, headaches requiring rest periods during most days. It is true that the Veteran has reported both fatigue and headaches. However, it does not appear that the fatigue is of such severity as to be classified "marked." Moreover, the fatigue has been attributed to the Veteran's PTSD, such as in February 2012. It is also noted that the 70 percent rating contemplates deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; which necessarily encapsulates work, family, and relationships. With regard to headaches, it was noted at a VA examination in November 2009 that the Veteran experienced headaches 3-5 times per week that might last all day, mostly on right occipital. The headaches were relieved by aspirin and had not been of such severity as to require treatment by VA. His activities were noted to be moderately impacted during the episodes. At a VA spine examination in May 2012, it was noted that the Veteran experienced headaches perhaps twice weekly and intermittent blurry vision ever since he was struck by a falling tree branch in mid-October 2011, as such, these headache symptoms were not attributed to his in-service TBI, but rather to a post-service incident. However, as discussed, the Veteran was experiencing headaches prior to the tree incident. In February 2012, the Veteran reported experiencing headaches, bitemporal and across frontal area of forehead, intermittently since 2006 skull fracture, prefers no meds, gets moderate to severe at times, no aura, no associated nausea , no increased light sensitivity, takes a nap and they resolve. The Veteran has been service connected separately for visual problems and for tinnitus. It is also well-documented that he experiences headaches. However, the evidence does not support a level of impairment above 1 as it is not shown that the headaches have required rest on most days. Initially, it was noted that the headaches were relieved by aspirin, suggesting that rest was not needed, and following being struck by the tree branch the Veteran reported experiencing the headaches approximately twice a week which would be less than most days. The next area for consideration is neurobehavioral effects. The regulations list a number of symptoms of possible neurobehavioral effects from TBIs including: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. The Veteran has experienced a number these, although not all of them. For example, he has reported experiencing irritability and moodiness, but he is consistently cooperative at his medical appointments and is neither aggressive nor belligerent. Moreover, to the extent he does experience neurobehavioral effects from his TBI, the neurobehavioral effects do not preclude social or work place interaction, as it is the Veteran's PTSD to which such impairment is attributed. As such, neurobehavioral cognitive effects are not sufficiently differentiable from the neurobehavioral PTSD effects to support a level of impairment above 1. With regard to communication, it was noted at the Veteran's November 2009 TBI examination that he was able to able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. The treatment records do suggest that the Veteran may have some impairment of speech and writing, but show that such problems are at most occasional (and certainly less than half of the time.) As such, any impairment of communication would merit at most a level 1. The Veteran has also not lost consciousness since service. As described, the cognitive impairments do warrant a separate 10 percent rating, as 1 is the highest facet and no facet is rated as total. As discussed, many of the cognitive impairments would be rated higher than a level 1, if not for the overlap with his PTSD. However, given the overlap between the Veteran's psychiatric disability and his TBI residuals a separate cognitive rating in excess of 10 percent is not warranted. Physical As noted, the third category under which TBI may be evaluated is physical dysfunction. Physical (including neurological) dysfunction based on the following list, is to be evaluated 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 traumatic brain injury. Residuals not listed here that are reported on an examination are evaluated under the most appropriate diagnostic code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and are to be combined under § 4.25 for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. In this case, the Board notes that the Veteran is already receiving separate ratings for visual impairment, for tinnitus, and for hearing loss. The evidence of record does not suggest any additional physical disabilities which warrant a rating under a separate and distinct Diagnostic Code. This is not to say that visual impairment, tinnitus, and hearing loss are the only impairments the Veteran experiences as residual to his TBI. As discussed above it is clear that the Veteran experiences a number of cognitive symptoms, including headaches, as a result of his TBI. However, these symptoms have been fully discussed and contemplated above in the cognitive discussion. As such, a separate rating is not warranted for any physical impairment beyond those ratings that have already been assigned. As discussed, the Veteran is entitled to a 70 percent rating for his PTSD and to a separate 10 percent schedular rating for the separable residuals of his TBI, and to this extent his claim is granted. II. Extraschedular Rating The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. Here, the evidence fails to show anything unique or unusual about the Veteran's TBI residuals, PTSD and/or skull fracture residuals that would render the schedular criteria inadequate. With regard to PTSD, the schedular rating criteria specifically dictate that all psychiatric symptomatology be considered in determining how it impacts his social and occupational functioning. Similarly, with TBI, the schedular rating criteria specifically dictate that all TBI related symptomatology be considered. In this regard, the schedular rating criteria by definition reasonably describe all of the symptoms of the Veteran's TBI and PTSD since the regulations direct that all symptomatology be taken into account. Therefore referral for extraschedular consideration is not warranted for either of those service connected disabilities. With regard to the Veteran's skull fracture residuals, the schedular rating criteria focus only on the size of the removed skull and not on any associated symptoms, although the Veteran has not specifically referenced any specific related symptomatology, beyond perhaps pain. Nevertheless, to the extent that the schedular rating criteria does not reasonably describe all of the symptoms of the Veteran's skull fracture residuals, the fact remains that the disability does not exhibit any of the factors considered to be "governing norms" of extraschedular ratings, including "marked interference with employment" or "frequent periods of hospitalization." Here the Veteran has not been hospitalized for his skull fracture residuals since service, and they are not suggested to have impacted his employment. Accordingly, referral for consideration of an extraschedular rating is not warranted for that condition. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, the Veteran is already receiving a TDIU rating; and a review of the November 2009 rating decision which granted the TDIU made it clear that it was the residuals of his TBI, which included the psychiatric rating, that formed the basis for that grant. III. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claims for service connection were granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained VA outpatient treatment records, and the Veteran submitted statements on his behalf. Social Security Administration (SSA) records were also obtained, but the records date entirely from before the Veteran was discharged from active duty, and therefore are not relevant to the discussion of the state of the Veteran's service connected disabilities during the course of his appeal. As such, these records were not addressed above. The Veteran was scheduled to testify at a hearing before the RO, but he failed to report for the hearing. The Veteran apologized for his absence in March 2013, but did not request an additional examination be scheduled. Moreover, given that the Veteran is currently receiving a total disability rating from VA, it is not felt he is in any way prejudiced by the Board's issuing a decision at this time. The Veteran was also provided with a number of VA examinations (the reports of which have been associated with the claims file). The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability under the applicable rating criteria. Neither the Veteran, nor his representative, has questioned the adequacy of any of the examinations. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A 30 percent rating for status post skull fracture and craniotomy is granted, subject to the laws and regulations governing the award of monetary benefits. A separate 10 percent rating for cognitive components of the Veteran's TBI, in addition to the 70 percent rating for PTSD, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs