Citation Nr: 1335342 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-30 079 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to higher ratings following the award of service connections for left ear hearing loss: noncompensable prior to December 12, 2011, and in excess of 10 percent thereafter. 2. Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) with headaches. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 2005 to June 2008. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO in Winston Salem, North Carolina, inter alia, granted service connection for hearing loss in the left ear, at a noncompensable rating, and TBI with headaches, at a 10 percent rating. The Veteran filed a notice of disagreement with respect to the initial ratings assigned for hearing loss in the left ear and TBI with headaches in February 2009. The Cleveland RO issued a statement of the case (SOC) in June 2009. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in August 2009. (While the Veteran also indicated in this Form 9 that he was "appealing" the rating assigned for post-traumatic stress disorder, this issue was not raised in his notice of disagreement or addressed in the SOC; as such, the only issues perfected for appeal are as listed on the Title Page). Following additional development, a supplemental SOC (SSOC) addressing the higher rating claims on appeal was completed in March 2013. Because the Veteran disagreed with the initial rating assigned following the award of service connection for left ear hearing loss, the Board has characterized this matter light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, as the RO in an interim January 2013 rating decision granted service connection for hearing loss in the right ear and assigned a 10 percent rating for bilateral hearing loss, effective December 12, 2011, inasmuch as higher ratings for hearing loss were available before and after that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has recharacterized the appeal regarding evaluation of left hearing loss as set forth on the title page. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. By regulation, hearing impairment in the non-service connected right ear prior to the grant of service connection for hearing loss in the ear effective December 12, 2011, was at Level I. 3. Hearing impairment in the left ear was at Level I prior to December 12, 2011, and, at worst, Level VI thereafter; hearing impairment in the right ear from December 12, 2011, is at Level II. 4. Residuals of a TBI with headaches do not result in multi-infarct dementia or severe incomplete paralysis of the trigeminal nerve. 5. Residuals of a TBI with headaches equate with a level of severity of "1" with respect to the memory, attention, concentration, executive function and (at its highest level) subjective symptoms facets of traumatic brain injury and "0" with respect to the judgment, social interaction, orientation, motor activity, visual spatial orientation,, neurobehavioral effects and communication facets of TBI. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for hearing loss in the left ear prior to December 12, 2011, and in excess of 10 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.10, 4.85, 4.86, Diagnostic Code (DC) 6100 (2013). 2. The criteria for an initial rating in excess of 10 percent for residuals of TBI with headaches are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.10, 4.214a, DC 8045 in effect prior to and after October 23, 2008. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO) Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A pre rating letter afforded the Veteran in conjunction with his participation in the Benefits Delivery at Discharge program (BDD) provided pertinent notice to the Veteran in connection with what were then claims for, inter alia, service connection for hearing loss and residuals of a concussion. That letter indicated what information and evidence was needed to substantiate the claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. This letter also provided the Veteran information pertaining to assignment of disability ratings and effective dates in compliance with Dingess/Hartman v. Nicholson. Furthermore, although no additional notice for the downstream issues with respect to ratings and effective dates assigned was required under 38 U.S.C.A. § 5103A (see VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)), in this case, after the award of service connection and the Veteran's disagreement with the initial rating assigned, the June 2009 SOC set forth the criteria for higher ratings for the disabiities at issues, the timing and form of which suffices, in part, for Dingess/Hartman. After the issuance of the cited notice, and opportunity for the Veteran to respond, the March 2013 SSOC reflects readjudication of the claims for higher ratings. Cf. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). As for the duty to assist, the RO obtained the Veteran's service treatment records (STRs) and VA treatment records. The Veteran has also been provided examinations, most recently in April 2012 with respect to TBI residuals and December 2012 with respect to hearing loss. The adequacy of the VA examinations that have been provided has not been challenged. The Board finds that no additional RO action to further develop the record in connection with either claim on appeal, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, supra, (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. See also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 with respect to, as in the instant case, the matters of higher initial and subsequent ratings assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award and consideration of the appropriateness of "staged ratings" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. At the outset, the Board notes that it has reviewed all of the evidence of record, to include in the Virtual VA file (Virtual VA claims processing system) with an emphasis on the evidence relevant to this appeal. (The Virtual File reveals clinical records dated through December 2012 documented to have been considered in the March 2013 SSOC). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, with respect to each claim. A. Left Ear Hearing Loss In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (zero percent) to a maximum 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz ). The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Under 38 C.F.R. §§ 4.85, the vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. If impaired hearing is service-connected in only one ear, as in the instant case, in order to determine the percentage evaluation from Table VII, the non-service connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). The percentage evaluation is determined from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VI," the percentage evaluation is 20 percent. See 38 C.F.R. § 4.85. The provisions of 38 C.F.R. § 4.86(a) pertaining to exceptional patterns of hearing impairment provide that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) pertaining to exceptional patterns of hearing impairment provide that, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Summarizing the pertinent evidence with the above criteria in mind, a July 2008 rating decision, as indicated, determined that service connection was warranted for hearing loss in the left ear. (Service connection for hearing loss in the right ear was denied in this decision based on audiometric findings failing to demonstrate hearing loss "disability" therein for the purposes of a grant of service connection as defined by 38 C.F.R. § 3.385.). A noncompensable rating for the hearing loss in the left ear under DC 6100 was assigned by the July 2008 rating decision. The July 2008 rating decision was based one an audiological evaluation conducted in conjunction with a May 2008 BDD examination that demonstrated pure tone thresholds, in decibels, in the left ear of 15, 10, 65, and 70 at 1000, 2000, 3000, and 4000 hertz, respectively. As such, the average pure tone threshold loss in the left ear was 40 decibels. Speech discrimination in the left ear was to 92 percent. As exceptional hearing loss as defined by 38 C.F.R. § 4.86 was not demonstrated, Table VI is for application, and the May 2008 audiometric results reveal that the Veteran's left hearing loss was manifested to Level I hearing acuity in the left ear under Table VI. As indicated, the Veteran's nonservice-connected right ear is assigned a Level I designation under Table VI. 38 C.F.R. § 4.85(f). Under Table VII, Level I hearing in each ear warrants the assignment of a noncompensable rating for the hearing loss in the left ear. 38 C.F.R. § 4.85. As such, the assignment of a noncompensable rating for left ear hearing loss in the July 2008 rating decision was in accordance withe controlling legal provisions. See Lendenman, supra. Thereafter, on examination on December 12, 2011, audiometric testing revealed pure tone thresholds, in decibels, in the right ear of 20, 25, 25, and 45 at 1000, 2000, 3000, and 4000 hertz, respectively. As such, the average pure tone threshold loss in the right ear was 29 decibels. Speech discrimination in the right ear was to 88 percent. These findings represent hearing loss disability in the right as defined by 38 C.F.R. § 3.385, and service connection for hearing loss in the right ear, effective from the VA examination of December 12, 2011, was granted by a January 2013 rating decision as previously noted. Also as previously noted, this action resulted in the assignment of a 10 percent rating for bilateral hearing loss effective from December 12, 2011. As such, for the period from December 12, 2011, the audiometric findings in the right ear will be considered in determining the proper rating for assignment for the service connected hearing loss in the left ear. Pure tone thresholds, in decibels, in the left ear at the December 2011 VA examination were 35, 55, 80, and 95 at 1000, 2000, 3000, and 4000 hertz, respectively. As such, the average pure tone threshold loss in the left ear was 65 decibels. Speech discrimination in the left ear was to 72 percent. As exceptional hearing loss as defined by 38 C.F.R. § 4.86 was not demonstrated, Table VI is for application, and the December 2011 audiometric results reveal that the Veteran's right ear hearing loss was manifested to Level II hearing acuity in the right ear and Level V in the left ear under Table VI. Under Table VII, Level II hearing in the better ear and Level V in the poorer ear warrants the assignment of a 10 percent rating for hearing loss. 38 C.F.R. § 4.85. During the most recent VA examination in December 2012, audiometric testing revealed pure tone thresholds, in decibels, in the right ear of 25, 25, 30, and 50 at 1000, 2000, 3000, and 4000 hertz, respectively. As such, the average pure tone threshold loss in the right ear was 32 decibels. Speech discrimination in the right ear was to 84 percent. Pure tone thresholds, in decibels, in the left ear were 35, 60, 80, and 90 at 1000, 2000, 3000, and 4000 hertz, respectively. As such, the average pure tone threshold loss in the left ear was 66 decibels. Speech discrimination in the left ear was to 68 percent. As exceptional hearing loss as defined by 38 C.F.R. § 4.86 was not demonstrated, Table VI is again for application, and the December 2012 audiometric results reveal that the Veteran's hearing loss was manifested to Level II hearing acuity in the right ear and Level VI in the left ear under Table VI. Under Table VII, Level II hearing in the better Ear and Level VI in the poorer ear warrants the assignment of a 10 percent rating for hearing loss. 38 C.F.R. § 4.85. In short, as both the December 2011 and December 2012 VA examinations demonstrated that the criteria for a 10 percent rating for hearing loss were met, the Board finds that the assignment of a 10 percent rating from December 12, 2011, was in accordance with the controlling legal provisions. See Lendenmann v. Principi, supra. A compensable rating cannot be assigned prior to this date as it was not shown until the December 12, 2011, VA examination that the audiometric findings for a compensable rating under 38 C.F.R. § 4.85 were met. B. TBI with Headaches The schedular criteria by which disability due to TBI is rated were changed for claims filed on and after October 23, 2008. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). However, although the Veteran's initial claim for service connection which gives rise to this appeal was filed prior to that in April 2008, claimants whose residuals of a TBI were rated by VA under a prior provision of 38 C.F.R. § 4.124a, DC 8045 are 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. Such a request was made by the Veteran in conjunction with his February 2009 notice of disagreement. Where a law or regulation (particularly pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The effective date rule established by 38 U.S.C.A. § 5110(g) (West 2002), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. The Veteran does get the benefit of having both the old regulation and the new regulation considered for the period before and after the change was made. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the pertinent amended regulations). Therefore, the adjudication below of the Veteran's claim of entitlement to an increased rating for post concussion type syndrome will reflect consideration of both the old and the new criteria. Under the old criteria for rating brain disease due to trauma under DC 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., was rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints of brain disease due to trauma such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma were rated 10 percent and no more under DC 9304. This 10 percent rating was not to 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 code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Moderate disability due to incomplete paralysis of the fifth (trigeminal) cranial nerve warrants a 10 percent rating. An increased (30 percent) rating requires severe disability due to incomplete paralysis of the trigeminal nerve. 38 C.F.R. § 4.124a, DC 8205. The new criteria are set out below: There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. 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 TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of 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 Menieres 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 TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of 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. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified'" with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A Veteran whose residuals of TBI are rated under a version of § 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. The rating schedule for evaluating cognitive impairment and other residues of traumatic brain injury not otherwise classified is set out below: EVALUATION OF COGNITIVE IMPAIRMENT AND OTHER RESIDUALS OF TBI NOT OTHERWISE CLASSIFIED Facets of cognitive impairment and other residuals of TBI not otherwise classified: Memory, attention, concentration, executive functions: Level of impairment Criteria 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. Judgment: Level of impairment Criteria 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. Social Interaction: 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. Orientation: 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. Motor activity (with intact motor and sensory system): 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. Visual spatial orientation: 0 Normal 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: 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: 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. Communication: 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. Consciousness Total Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. Consciousness Total Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. 38 C.F.R. § 4.124a (effective October 23, 2008). With the above criteria in mind, the relevant facts will be summarized. At a May 2008 BDD examination conducted prior to separation from service, the Veteran reported that he was 30 meters away from an Improvised Explosive Device (IED) explosion while serving in Iraq in November 2006. He also described another incident in which artillery shells exploded 25 meters away from him in December 2006. He stated that these explosions "knocked him to the ground" but involved no loss of consciousness. The Veteran reported suffering from headaches after the blasts in which he felt like his entire head was throbbing. He reported that the headaches did not preclude work but required medication, and that the headaches occur three times a week and last for about two to three hours. Some right arm numbness was also described, and the Veteran reported "tingling" in the neck. The Veteran described no history of weakness or paralysis, seizures, swallowing difficulties, problems with urination, or rectal issues. Additional pertinent findings from the May 2008 VA examination included complaints of fatigue, confusion, memory problems, slowness of thought, problems with attention, constant tinnitus, anxiety, irritability, discomfort from itchiness of the entire body, restlessness, pressure and dryness of the eyes, problems with sleeping, lightheadedness, a spinning sensation once a month, and stuttering. The examiner stated that the symptoms of TBI were generally stable and stated with respect to the claimed "concussion condition" that the Veteran was exposed to multiple explosions but never received any shrapnel or lost consciousness. It was noted that his condition was mild in severity with slight memory loss and headaches. The examiner also diagnosed the Veteran with posttraumatic and tension type headaches with a normal neurological examination and subjective completes of headache once a day lasting one to two hours treated with Tylenol or Motrin. Following separation from service, the July 2008 rating decision on appeal granted service connection for TBI with headaches and, with application of the "old" criteria, assigned a 10 percent rating under DC 8045-9404 on the basis of subjective complaints only. Thereafter, the Veteran was afforded a VA TBI examination in April 2012, with the reports from the examination also documenting review of the claims file and VA electronic medical records. In describing the explosions he was in proximity to during service, the Veteran reported that such explosions "threw him across the road." He reported that he thought he lost consciousness for a few minutes but was not sure, and that he vomited for the two weeks after the explosions but sought no treatment for these symptoms. The Veteran told the examiner that it took a few days after the explosion for his thinking to clear and that since that time, he almost was fired for "messing up" forms needed to buy guns. He also described forgetting a doctor appointment after stopping for a refreshment while traveling to the appointment. As to the facets of TBI set forth under the revised rating criteria, in checklist fashion, the examiner noted first with the respect to the "memory, attention, concentration, executive function" facet that the level of impairment was "1" on the basis of disability characterized by 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. All other facets of TBI under the revised criteria were said to be normal/"Level 0." With respect to additional residuals/functional impairment not contemplated by the criteria, it was noted that the Veteran complained about anger and feelings of inadequacy, symptoms which the examiner attributed to his service connected PTSD and not TBI. The examiner also indicated that the Veteran's performance on neuropsychological testing at the examination was within the expected range and in fact "quite good." The examiner also noted that given the limited severity of his reported concussions and good performance on cognitive testing it was unlikely that his cognitive complaints were due to any lingering effects from his concussions, although this could not be ruled out with certainty. It was also noted that magnetic resonance imaging conducted in December 2010 was normal, and the examiner concluded that residuals of TBI did not impact the ability of the Veteran to work. The examiner also found that the Veteran's TBI had "healed without residuals," and that there was "no pathology or diagnosis of TBI at this time." It was also noted that no complaints of headaches were made upon the examination and that the previous remote posttraumatic headaches had healed without residuals. Applying first the old criteria to the facts summarized above, there is no evidence that the Veteran has multi-infarct dementia as a result of the cerebral concussion. As such, a rating in excess of 10 percent is not assignable under the old criteria for purely subjective complaints codified at DC 8045. As an increased rating for neurological disability under the old criteria required severe disability due to incomplete paralysis of the trigeminal nerve, and the VA examinations above have demonstrated no objective neurological disability, increased compensation cannot be assigned for purely neurological disability under the old criteria with application of 38 C.F.R. § 4.124a, DC 8205. With respect to application of the new criteria, the Board finds that a rating in excess of 10 percent also cannot be assigned under these criteria. As indicated, the VA examination conducted in April 2012 included a specific evaluation under these criteria, and found there only to be a "Level 1" impairment in one facet; namely, the "memory, attention, concentration, executive function" facet, and "Level 0" impairment with respect to every other facet. With resolution of reasonable doubt in the Veteran's favor, while there were said to be no subjective symptoms as contemplated by this facet at the April 2012 VA examination, given such complaints at the March 2008 BDD examination of dizziness, tinnitus, and headaches and assessment of mild disability at this examination, the Board finds that there is "Level 1" impairment under the "subjective symptoms" facet. However, to assign "Level 2" for this facet, there would have to be "moderate" interference with work. As indicated, the examiner who conducted the most recent VA examination found that there is no impact on the Veteran's ability to work, and the Veteran himself told the examiner at the May 2008 VA examination that his headaches did not preclude employment. Thus, as there is otherwise no indication of symptomatology that even approaches "Level 2" in this or any other facet, and a rating in excess of 10 percent under the revised criteria requires a severity level of "2" in any of the facets of TBI set forth under the new criteria, increased compensation is not warranted under the revised criteria codified at 38 C.F.R. 4.124a, DC 8045 (2013). This determination is also consistent with the fact that a diagnosis of TBI was not found to be warranted at the most recent VA examination, nor were any residuals of TBI said to be demonstrated at that time. C. Other Considerations In assessing the severity of each disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings are the required clinical findings that are within the province of trained medical and mental health professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective clinical findings which, as indicated above, do not support assignment of a higher rating for either disability pursuant to any applicable criteria at any point pertinent to this appeal. Additionally, the Board finds that at no pertinent point has either disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the March 2013 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate each disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no clinical indication or argument that the applicable criteria are otherwise inadequate to rate either the service connected hearing loss or TBI with headaches. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). "Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities." Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc). Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not. Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extra-schedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13). Stated in other terms, an extra-schedular rating may not be assigned for the cumulative impact of the service-connected disabilities herein at issue. Finally, the Board acknowledges the fact that if the claimant or the record reasonably raises a question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, there has been no assertion that either disability at issue had rendered the Veteran unemployable, and the examiner who conducted the April 2012 VA examination specifically found that the Veteran's TBI had no impact on employment. There is otherwise no specific evidence that either service connected disability at issue herein renders the Veteran unable to secure or follow a substantially gainful occupation. As there is no suggestion of actual or effective unemployment due solely to the service connected hearing loss or TBI with headaches, consideration of a TDIU in connection with either higher rating claim on appeal is not warranted. For all the foregoing reasons, the Board concludes that there is no basis for a staged rating for TBI with headaches or any further staged rating for hearing loss in the left ear pursuant to Fenderson, and that each claim for a higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the assignment of a higher rating for either disability under consideration at any pertinent point, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim for an initial, compensable rating for left ear hearing loss prior to December 12, 2011, and for a rating for the disability in excess of 10 percent thereafter, is denied. An initial rating in excess of 10 percent for TBI with headaches is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs