Citation Nr: 1330160 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-32 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for residuals of right head and ear injury, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1978 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at an informal conference hearing at the RO April 2010. An informal conference report is of record. Although the appeal also originally included the issue of entitlement to an increased rating for headaches, the maximum rating was granted by rating decision in November 2012 and is therefore no longer in appellate status. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran been diagnosed with multi-infarct dementia due to his head injury. 2. Prior to October 23, 2008, the Veteran's residuals of TBI were manifested by purely subjective complaints. 3. From October 23, 2008, 1 is the highest level of evaluation for any facet of the Veteran's residuals of TBI. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected residuals of right head and ear injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.123, 4.124a Code 8045 (2008 & 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); and Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Appropriate notices were provided to the appellant in August 2008, September 2008 and December 2008. With regard to the duty to assist, VA has obtained VA treatment records, reviewed the Virtual VA file, assisted the Veteran in obtaining evidence, afforded him adequate VA examinations and an informal conference hearing at the RO in April 2010. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The present appeal involves the Veteran's claim that the severity of his service-connected right head and ear injury warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that 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. The Veteran filed a claim for increased rating in June 2008. The protocol for traumatic brain injuries (TBI) was revised during the pendency of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. 38 C.F.R. § 4.124, Note (5) (2012). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). However, a veteran whose residuals of TBI were rated by VA under a prior version of 38 CFR 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). In this case, while the Veteran filed his claim for service connection prior to October 2008, the RO reviewed under the old and new criteria. Prior to October 23, 2008, brain disease due to trauma under Diagnostic Code 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, was to be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated at a maximum of 10 percent under Diagnostic Codes 9304, "Dementia due to head trauma." This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Codes 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. Part 4, § 4.124a, Diagnostic Codes 8045. Revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Note (1): There may be an overlap of manifestations of conditions evaluated under the table with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medication and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Factual Background In a January 1999 rating decision, service connection was granted for residuals of a right head and ear injury. Service medical records showed that the Veteran injured the right side of his head. The injury was sutured and the scar was barely visible, but the Veteran had subjective complaints of occasional headaches, tinnitus and dizziness as a result of the injury. The RO assigned an initial 10 percent rating for subjective complaints such as headaches, dizziness, and insomnia. The Veteran submitted a claim for increase in June 2008. In the January 2009 rating action on appeal, the RO continued the 10 percent rating (under the new criteria) based upon a finding that the highest level of impairment for the facets of TBI was "1." In that same rating decision, the RO granted service connection and assigned a 30 percent rating for headaches, effective June 12, 2008. The RO noted that the Veteran continued to complain and seek treatment for headaches and since the condition had increased, a separate rating was warranted. During the course of the appeal, the RO granted service connection and assigned a separate 30 percent rating for mood disorder. See May 2011 and July 2012 rating decisions. The Veteran was afforded a VA examination in September 2008. He reported "some electric shocks I get on the right side of my face". He also experienced muscle cramps every morning on the right side of his neck and shoulder. Sometimes, his right eye closed for no reason. He also reported numbness on the right side of his face. He reported moderate flare-ups in these symptoms that included pain. He reported that his condition stabilized. He denied seizures, headaches, dizziness. On physical examination, there was no motor or sensory impairment, and no impairment of the peripheral and autonomic systems. There were no joint involvement and no psychiatric manifestations. It was noted that the Veteran had a normal fundoscopic examination. The Veteran did not have bladder or bowel impairment. The examiner noted that the Veteran was mentally capable of managing benefit payments as his executive functions were intact. His sense of smell and tested were unaffected. The VA examiner diagnosed status post head injury with no current residuals. An October 2008 VA treatment record shows a depression screen in which the Veteran reported feeling little interest/pleasure in doing things for several days. He also reported feeling down, depressed or hopeless for several days. A December 2008 VA treatment record shows that he was able to ambulate and stand independently. He was alert and oriented to person, place and time. His speech was clear and he was neat/clean in appearance. He denied falling in the past 90 days and denied changes in walking or balance. The Veteran was afforded a VA examination in January 2009. Headaches occurred daily and lasted "almost throughout" the day. The Veteran did not have photosensitivity. He was unable to function with severe headaches. There was no dizziness, vertigo, weakness or paralysis. There was sleep disturbance with secondary insomnia. He had mild fatigue, but no malaise. Mobility and balance were not impaired. His attention and concentration were impaired. There was no speech and swallowing difficulty. The Veteran did not have any bowel or bladder impairment. There are no sensory and acute visual changes. He did not complain of tinnitus or any hearing impairment at this time. Sense of taste and smell were not altered. There was no history of seizure disorder, hypersensitivity to sound and light, neurobehavioral changes and autonomic dysfunction. Strength and muscle tone were normal. Reflexes were symmetrical. There was no sensory impairment in any of the extremities. There was no spasticity of the gait. There was no incoordination observed. There was no endocrine dysfunction. The Veteran did have memory impairment and diminished concentration. Vision and hearing were functional. There was no area of skin breakdown or eczema. The diagnoses were residuals of TBI with the following limitation: (1) impaired concentration, attention, and global memory impairment (mild in degree); and (2) migraine headaches, mildly responding to current antimigraine treatment. A May 2010 VA treatment record shows that he denied feeling depressed but stated that he was often "down", had little energy, has mood swings and was often irritable. It was noted that he had moderately severe depressive symptoms: poor interest, insomnia, low energy/fatigue, poor appetite, guilt, worthlessness, poor concentration, psychomotor retardation/irritability, emotional labilty and poor memory. He denied suicidal and homicidal ideation. Upon mental status examination, the Veteran was neat, clean and casually dressed. He was cooperative, and very sleepy during evaluation that he nodded off a few times. His speech had normal rate and rhythm. He had depressed mood. His mood was congruent. His thought process was generally coherent, but had trouble answering some questions. Questions had to be repeated. It was difficult to determine if this was due to sleepiness, language barrier or actual cognitive problems. There was no evidence of delusions or hallucinations. The diagnoses were depressive disorder, NOS, rule out mood disorder due to medical condition (TBI) and rule out cognitive disorders, NOS. A July 2010 VA behavioral health follow-up note shows high anxiety and reports of significant depressive symptoms. Upon mental status examination, he was neat, clean and casually dressed. He was cooperative and calm. He had normal rate and rhythm. Mood was depressed/anxious. Affect was mood congruent. His thought process was clear and coherent. He denied suicidal and homicidal ideations. There was no evidence of delusions or hallucinations. A July 2010 VA mental health diagnostic study shows that he was having little interest or pleasure in doing things for several days. For more than half the days, was feeling down, depressed or hopeless. The same was true for trouble falling/staying or sleeping too much. For several days he felt tired/had little energy; had poor appetite/overeating; and would feel bad about himself or feel that he was failure or had let himself/family down for several days. Nearly every day he had trouble concentrating on things such as reading a newspaper or watching television, and he moved or spoke so slowly that others could have notice or the opposite being so fidgety or restless that he had been moving around a lot more than usual. He denied thoughts of suicide or hurting himself. These problems made it extremely difficult for him to do his work, take care of things at home and get along with others. The Veteran was seen at the VA for chronic headaches in July 2010. He was alert and oriented, and was appropriately dressed and groomed. He was slightly guarded during the interview. His thoughts were described as logical and coherent. There was no suicidal or homicidal ideation. His mood was depressed and his affect was normal. The assessment was depressive disorder NOS. The Veteran was afforded another VA examination in July 2010. The Veteran reports that the severity of the pain level of the headaches had increased since January 2009, with constant daily migraine-type headaches that were not prostrating in nature. He could not pay attention and concentrate with headaches and he was unable to function well when they were severe. There was no dizziness or vertigo, weakness or paralysis, malaise, mobility, balance, and sleep disturbance. He slept for six to seven hours at night with the use of CPAP. He had mild fatigue. He was independent in ambulation. He is not using any assistive device to assist him in walking. He had some memory impairment and cognitive problems: decreased attention, difficulty concentrating and difficulty with executive functions. There was no speech or swallowing difficulties and no or bowel or bladder problems. There were no mood swings, but the Veteran sometimes had anxiety and depression. There were no sensory changes, visual problems, hearing problems, tinnitus, decreased sense of taste or smell, seizures and hypersensitivity to sound. There was hypersensitivity to light. He had irritability and restlessness. There were no symptoms of autonomic dysfunction, endocrine dysfunction or cranial nerve dysfunction. The examiner noted the Veteran was working full-time and had not been absent in the past 12 months due to headaches or any other medical problems. The Veteran stated he could not pay attention and concentrate with headaches and was unable to function well when they were severe. Otherwise, he was independent in all routine daily activities. Motor strength measured 5/5. Muscle tone was normal. No muscle atrophy was noted. Deep tendon reflexes were 2+ and symmetrical. No pathological reflexes were noted. There was no sensory impairment. He was ambulating with a normal gait pattern. There was normal examination for autonomic nervous system, and cranial nerves. There was no cognitive impairment. The Mini Mental State Examination showed a score of 30/30. He was oriented to time and place. Registration was intact. On attention and calculation, he was able to do serial 7 subtractions correctly. On recall, he was able to recall "apple", "table," and "penny" correctly. He was able to read, write, copy two intersecting pentagons and to follow through with the three-step commands well. He had normal vision and hearing. There were no areas of the skin breakdown. There was no endocrine dysfunction. When assessing cognitive impairment, the examiner noted a complaint of mild memory loss such as forgetting the appointments, difficulty in remembering names of the new acquaintances or often misplacing items, attention, concentration or executive function but without objective evidence on testing by the Mini Mental State Examination. Judgment was normal. Social interaction was routinely appropriate. Motor activity and visual spatial orientation were normal. There were subjective symptoms that mildly interfere with the instrumental activities of the daily living or work, family or other close relationships. There were neurobehavioral effects that occasionally interfered with social interaction. Examples of the neurobehavioral effects were irritability, moodiness, and lack of motivation. However, the Veteran reported they interfered at home, but not at work. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. There were chronic headaches secondary to head trauma. The examiner diagnosed residuals of the mild to moderate TBI in 1997 secondary to a motor vehicle accident, with post traumatic migraine headaches moderate to severe, subjective impaired memory, attention, concentration during moderate to severe headaches. The examiner noted that there was no impact of the injury on the Veteran's ability to manage his financial affairs including knowing the amount of his VA benefit payment, knowing the amounts and types of bills owed monthly and handling the payment prudently. He noted that the Veteran was capable of managing his financial affairs for VA purposes. When asked which emotional/behavioral signs and symptoms represent residuals of the TBI, the examiner stated: "irritability, however he was diagnosed with depressive disorder NOS, rule out mood disorder due to medical condition (TBI)." A September 2010 VA Behavioral Health follow-up treatment record shows he was finally able to get more sleep with the CPAP. He still had marked irritability at times, and believed people were watching or thinking about harming him. He was fearful that people may break into his home and try to steal. He stated there have been robberies in his neighborhood and his fears are justified. The Veteran also noted that almost got into a fight with a coworker recently about a joke. He denied suicidal or homicidal ideation related to specific people. He had no intent to harm anyone, just the need to protect self and family. The Veteran was alert and oriented, appropriately dressed and groomed, and was lucid in interview. His thoughts were logical and coherent, there was a quality of suspiciousness, but no definite delusions or hallucinations on exam. His mood was anxious; affect, normal. The diagnosis was mood disorder due to general medical condition. The examiner noted that the Veteran had mood symptoms and impulse control issues related to TBI, but the examiner did not think the Veteran had "clearly psychotic" symptoms but rather has executive function deficits related to TBI. A January 2011 VA treatment record shows he was being re-evaluated for his medication for mood symptoms related to TBI and chronic headaches. He reported feeling better overall with medication. He had headaches but felt less angry and turned his worry to God. He slept 6 to 7 hours but could sleep longer. He was comfortable with his job. He was alert and oriented. He was appropriately dressed and groomed and pleasant in the interview. His thoughts were logical and coherent. There was no suicidal and homicidal ideation. He had some worry. His affect was normal. The assessment was mood disorder due to general concentration (TBI, migraine). A February 2011 VA treatment record shows complaints of headache since earlier that day. He was oriented to time, person, place and situation. He had no thoughts of suicide, intent to act on thought of harming himself, wishing he were dead. He had a normal gait. His mood and behavior were appropriate; and his speech was clear. The Veteran was afforded a VA examination in February 2012 for PTSD during which the examiner diagnosed mood disorder due to a general medical condition (TBI, headache). The examiner noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. When asked if it is possible to differentiate what portion of the occupational and social impairment indicated above is caused by TBI, the examiner responded "no". Since April 2011, the Veteran continued to reside with his second wife of 24 years and three children. He described his relationship with his wife "hanging in there" noting that they are struggling due to lifestyle changes and frustration associated with his gastritis and esophageal reflux. He reported that he was seen at Darnell Medical Center and lost very large amounts of weight due to this. He states that this condition required a total change in diet. He reported that he became upset frequently. He had made positive adjustments to his diet. He described his relationships as good. The Veteran had some friends in the area with whom he gets together. He enjoyed watching television, walking in the park, and cleaning the house. He did not go out to the movies or to the mall for fear of being robbed. Since April 2011, the Veteran has worked for 13 years at Texas Hydraulics. He reported functioning well on the job, but warned his co-workers about his medical condition. He reported that his energy was so low due to his stomach problems. He reports that his work schedule is limited to 40 hours per week and that he has been given light duty. The Veteran tried to control his anger to avoid spending time in jail as he did in 2003 after being charged with assault to a family member. The Veteran reported no current or pending legal problems, and no alcohol and substance use. He had migraine headaches, sleep apnea with CPAP, neck pain, gastritis/esophageal reflex, and some hearing difficulties (ringing in his ears). The examiner noted symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss (such as forgetting names, directions or recent events), difficulty in establishing and maintaining effective work and social, and suicidal ideation. The Veteran reported sadness, feelings of rejection, anhedonia, feelings of guilt, self-critical thought, crying spells, restlessness, loss of interest in activities and others, fatigue, impaired concentration, and loss of interest in sexual interaction. The Veteran indicated that he previously experienced anger outbursts, but now consciously must walk away and self-calm immediately. The examiner found the Veteran capable of managing his financial affairs. The Veteran completed the Beck Depression Inventory, Second Edition (BDI-II) and scored a 42, which suggested severe symptoms of depression over the past two weeks. The following symptoms were reported on the BDI-II at the levels indicated: severe symptoms (sadness, loss of pleasure, punishment feelings, changes in sleeping pattern (less), concentration difficulty), moderate symptoms (past failure, guilty feelings, self-criticalness, crying, agitation, loss of interest, indecisiveness, loss of energy, tiredness or fatigue, loss of interest in sex), and mild symptoms (pessimism, self-dislike, suicidal thoughts or wishes, worthlessness, irritability, and changes in appetite (more)). The Veteran was afforded another examination in October 2012. He stated that he was unable to tolerate heat due to headaches and was unable to eat hot food and take hot showers. He had constant headaches on a daily basis. He had nausea and vomiting associated with the headache. He had photo sensitivity. He stated that he cannot pay attention and concentrate when he has headaches and he was unable to function well when he has a severe headache. There was no dizziness or vertigo, or weakness or paralysis, related to TBI. There were no sleep disturbances. He slept for 7-8 hours. He had mild fatigue not related to TBI. There was no malaise, mobility, or balance related to TBI. He was independent in ambulation. He was not using any assistive device to assist him in walking. There was mild short term memory loss, decreased attention and difficulty concentrating and difficulty with executive functions when he has a headache. There were no speech or swallowing difficulties, bowel or bladder problems, erectile dysfunction, sensory changes, visual problems, decreased taste/smell, and seizures related to TBI. He had mood swings due to headache, and sometimes had anxiety and depression. He complained of decreased hearing and tinnitus. He had hypersensitivity to sound, but not light. He had irritability and no restlessness. There were no symptoms of autonomic dysfunction, such as heat intolerance, excess or decreased sweating, etc. The Veteran was employed full time at Texas Hydraulics. He was absent on an average 2-3 times a month in the past 12 months due to the headaches. He stated that he cannot pay attention and concentrate, and plan and organize when he has the headaches, and he was unable to function well when they were severe. He ambulated with a normal gait pattern. Motor strength was grade 5/5 in all four extremities. He had normal muscle tone and no muscle atrophy was noted. Deep tendon reflexes were 2+ and symmetrical. No pathological reflexes are noted. No sensory impairment related to TBI was noted. There was no spasticity, rigidity, tremors or fasciculations. There was normal examination of the autonomic nervous system. A mini mental status examination showed a total score of 30/30; there was no cognitive impairment. He was oriented to time, place and person. Registration was intact on attention and calculation. He was able to do the Serial 7's correctly. He was able to recall "apple", "table", and "penny" correctly. The mini mental status examination was normal. He had normal vision and hearing. There were no areas of the skin breakdown due to neurologic problems. There was no endocrine, autonomic dysfunction or other abnormal physical findings. The examiner noted a complaint of mild memory loss, such as forgetting the appointment and difficulty remembering names of the new acquaintances, often misplacing items attention and concentration or executive function, but without objective evidence on testing by the mini mental status examination. Judgment, motor activity (with intact motor and sensory system), and visual spatial orientation were normal. There were no subjective symptoms that mildly interfered with instrumental activities of the daily living, work, family or other close relationships. Examples of the findings that might be seen at this level of impairment were moderate to severe headaches, hypersensitivity to sound, and sensitivity to heat. There were one or more neurobehavioral effects that occasionally interfered with the work place interaction, social interaction or both, but do not preclude them. Examples of the neurobehavioral effects were irritability and moodiness. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. The examiner diagnosed residuals of the mild to moderate TBI in 1997 secondary to motor vehicle accident with worsening of posttraumatic migraine headaches, moderate to severe. He noted subjective short term memory loss, decreased attention and concentration, and mild during moderate to severe headaches. The examiner noted that the Veteran can handle money and pay the bills himself, and is capable of managing his financial affairs for VA benefit purposes. Analysis Based on the foregoing, the Board finds that the weight of the evidence is against an evaluation in excess of 10 percent for residuals of a TBI for the rating period prior to October 23, 2008. No neurological disabilities were found, and the Veteran's complaints consisted purely of subjective complaints. Further, the separate rating for headaches has been in effect since the date of the claim for increased rating, June 2008. As previously noted, prior to the October 23, 2008 amendments, Diagnostic Code 8045 provided that purely subjective complaints such as headache, dizziness, and insomnia are to be rated as 10 percent disabling and no more under Diagnostic Code 9304, which addresses dementia due to head trauma. Diagnostic Code 8045 additionally states that ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. In this case, there has been no diagnosis of multi-infarct dementia. Thus, Diagnostic Code 8045 does not allow for a disability rating in excess of 10 percent for any part of the rating period on appeal prior to October 23, 2008. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). There are no other applicable diagnostic codes that would allow for a disability rating in excess of 10 percent prior to October 23, 2008. Next, the Board has considered the evidence pertinent to the rating period on appeal from October 23, 2008, forward, to determine whether a disability rating in excess of 10 percent is warranted under the amended regulations for evaluating residuals of TBI. The Board has evaluated the Veteran's cognitive, emotional/behavioral, and physical impairment resulting from the TBI using the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Separate ratings are in effect for headaches and mood disorder. Emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately under 38 C.F.R. § 4.130 (Schedule of Ratings for Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder due to TBI, emotional/behavioral symptoms should be evaluated under the criteria in the table. Here, the Veteran is currently diagnosed with a comorbid mental disability - mood disorder, evaluated as 30 percent disabling. Although the VA examiners and clinicians did not state which emotional/behavioral symptoms were part of the comorbid mood disorder versus residuals of TBI, the Board has provided the Veteran with the benefit of the doubt and considered the Veteran's emotional/behavioral problems under the neurobehavioral effects facet of the table. A higher rating under the new criteria is not warranted. Addressing cognitive impairment, subjective symptoms and emotional/behavioral dysfunction, the Veteran had normal judgment, motor activity, visual spatial orientation, communication and consciousness. Social interaction is considered routinely appropriate. Thus, the assignment of an impairment level of 0 is appropriate. The highest impairment level for any facet is 1 for three facets: (1) memory, attention, concentration, executive functions; (2) subjective symptoms; and (3) neurobehavioral effects. A level 2 is not warranted for each of the three aforementioned facets since there is no objective evidence on testing of mild impairment of memory, attention, concentration or executive resulting in mild functional impairment. The Veteran was still able to work 40 hours a week and keep his job after more than a decade. He had perfect scores on mini mental examinations, and was able to communicate through written and spoken language. As for subjective symptoms, there was no evidence that they moderately interfered with work, instrumental activities of daily living, or work, family or other close relations. Examples did not include marked fatigability, blurred or double vision, and headaches requiring rest periods during most days. The Board acknowledges the Veteran's reports of severe headaches that made it difficult to function. However, the headache disability is separately rated and the evaluation of the same disability or symptomatology under various diagnoses is to be avoided. 38 C.F.R. § 4.14. As for neurobehavioral effects, there was no evidence of one or more neurobehavioral effects than frequently interfered with workplace interaction, social interaction or both but did not preclude them. The Veteran was irritable and at one point he nearly got into a fight with a fellow coworker. Nevertheless, he still was employed at a job he had held for over 10 years. He was also still married to his wife for over 20 years. He had friends. He was usually described as cooperative with medical personnel. At the July 2010 VA examination, he stated being irritable, moody and having a lack of motivation, but did clarify that they interfered at home and not at work. Nevertheless, it does not appear to the Board that the neurobehavioral effects caused frequent interference. Also, the Board notes again that the Veteran has been granted service connection for mood disorder. It appears that the RO found that the Veteran's difficulty in establishing/maintaining effective work and social relationships are attributed to his service-connected mood disorder. As for physical dysfunction, that there is no visual impairment, motor and sensory dysfunction, right ear hearing loss, loss of sense of smell or taste, and seizures. The medical evidence showed no gait, coordination and balance problems. There was no evidence of speech and other communications difficulties. Speech was always described as clear. While the May 2010 VA treatment record provided that the Veteran had trouble answering questions and it was uncertain whether it was due to his sleepiness, language barrier or actual cognitive problem. It was noted that the Veteran's thought process was coherent. The October 2012 VA examiner noted no speech difficulties. The Veteran continually denied neurogenic bladder and bowel problems. The medical evidence consistently showed no cranial nerve, autonomic nerve and endocrine dysfunctions. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is competent to report his observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased rating, the Board finds that the VA examinations and clinical reports, which considered the Veteran's reported symptoms, are more persuasive than the Veteran's assertions that he is entitled to a higher disability rating. Thus, for the reasons discussed above, the Board finds that the Veteran is not entitled to a disability evaluation in excess of 10 percent from October 23, 2008, forward, under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" because no facet was classified at an impairment level of "2" during any part of the rating period on appeal from October 23, 2008, forward. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's TBI are contemplated by the applicable rating criteria. The schedular criteria for rating residuals of TBI specifically provide for ratings based on the presence of cognitive, emotional/behavioral, and physical symptoms such as those described by the Veteran, and even provide for more severe symptomatology. Comparing the Veteran's disability level and symptomatology of residuals of TBI to the rating schedule, the degree of disability caused by the TBI throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an increased rating for residuals of right head and ear injury, currently evaluated as 10 percent disabling, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs