Citation Nr: 1337367 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 94-32 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to evaluations in excess of 30 percent prior to January 15, 2010, and in excess of 70 percent thereafter, for chronic brain syndrome due to trauma with facial spasm and anxiety with headaches ("chronic brain syndrome"). 2. Entitlement to an effective date prior to January 15, 2010 for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) from a July 1993 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a personal hearing at the RO in Little Rock, Arkansas in August 1996 in support of his appeal for an increased evaluation for his service-connected chronic brain syndrome. A transcript of that proceeding has been associated with the claims file. The Board remanded these claims in July 1999, October 2005, August 2009 and August 2012 for additional development and adjudicative action and to rebuild a portion of the Veteran's claims file. In the August 2012 decision, the Board also denied increased ratings for (1) fusion of C5-C7 and C7-T1, (2) paralysis of the right lower radicular group, (3) paralysis of the left lower radicular group and (4) paralysis of the right vocal cord. Thus, those issues are no longer part of the current appeal. The issues of (1) entitlement to special monthly compensation based on the need for aid and attendance see September 2011 submission from representative; (2) entitlement to service connection for myelopathy as secondary to service-connected fusion of C5-C7 and C7-T1, see October 2012 VA examination report on pages 6 and 9; and (3) entitlement to service connection for neurogenic bladder as secondary to service-connected fusion of C5-C7 and C7-T1, see October 2012 VA examination report on pages 6 and 9, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an effective date prior to January 15, 2010, for the award of a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to January 15, 2010, the Veteran's organic brain syndrome was manifested by no more than definite impairment of social and industrial adaptability; considerable impairment of social and industrial adaptability was not shown. From November 7, 1996 to January 14, 2010, the service-connected organic brain syndrome was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity was not shown. 2. Since January 15, 2010, the Veteran's organic brain syndrome has not been manifested by total social and industrial inadaptability or total occupational and social impairment. 3. Since October 23, 2008, the Veteran has experienced headaches associated with chronic brain syndrome. His headaches, however, are not characterized by prostrating attacks averaging one in town months over the last several months. 4. Throughout the pendency of the appeal, the facial spasm/paralysis associated with the Veteran's chronic brain syndrome has not been manifested by objective findings. CONCLUSIONS OF LAW 1. Prior to January 15, 2010, the criteria for the assignment of an evaluation in excess of 30 percent for organic brain syndrome were not met. 38 U.S.C.A.§§ 1155, 5107(b) (West 2002); 38 C.F.R.§§ 4.7, 4.124a, Diagnostic Code 8045 (prior to 2008 and as of 2008); 4.132 Diagnostic Code 9304 (prior to1996); 38 C.F.R. § 4.130, Diagnostic Code 9304 (2013). 2. Since January 15, 2010, the criteria for the assignment of an evaluation in excess of 70 percent for organic brain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R.§§ 4.7, 4.132, Diagnostic Code 9304 (prior to 1996); 38 C.F.R. § 4.130, Diagnostic Code 9304 (2013). 3. A separate, noncompensable rating is warranted for headaches as of October 23, 2008. 38 U.S.C.A.§§ 1155, 5107(b) (West 2002); 38 C.F.R.§§ 4.7, 4.124a, Diagnostic Code 8045-8100 (2013). 4. The criteria for entitlement to a separate rating for facial paralysis have not been met. 38 U.S.C.A.§§ 1155, 5107(b) (West 2002); 38 C.F.R.§§ 4.7, 4.124a, Diagnostic Code 8045-8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify a claimant of the evidence that is necessary, or would be of assistance, in substantiating his or her claims, and to provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Further, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Initially, the Board notes that this case has been pending since prior to the passage of the VCAA in 2000. Thus, VA did not meet the duties to notify prior to the decision upon which the appeal is based. However, this procedural defect has been cured, as VA readjudicated the issue after providing proper notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007) (holding that timing deficiencies in VCAA notice are cured by readjudication in a supplemental statement of the case). The Board finds that all notification action needed to make a decision as to the issue being decided has been completed. Through September 2009, December 2009, January 2010, April 2011, and June 2011 notice letters, the Veteran was notified of the information and evidence needed to substantiate his increased rating claim. By a March 2006 letter and the other letters laid out above, the Veteran was also provided with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claims, the claims were properly re-adjudicated in subsequent statements and supplemental statements of the case which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the aforementioned notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letters asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, a remand of the issue for further notification of how to substantiate the claim is not necessary. The Board also notes that this case involves a rebuilt claims file. When service treatment records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. In this case, one volume of the Veteran's claims file was lost. In such circumstances, VA also has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision ...." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Attempts by the RO to rebuild the missing claims file have been largely futile. The appeal was remanded in July 1999, October 2005, and August 2009 for the specific purpose of rebuilding and/or locating the missing volume and/or records of the claims file. Multiple attempts by the RO were subsequently made after each remand to locate and associate pertinent records with the existing claims file. All such efforts are documented throughout the claims file. In addition, the Veteran was informed that the claims folder was being rebuilt, and he was requested to submit any pertinent information in his possession. In March 2010, the RO issued a formal finding of unavailability as to the evidence from the missing claims file and the documented attempts to locate the records. As it has been determined that further efforts to rebuild the missing volume would be unavailing, there is no basis for any additional attempts to rebuild the claims file. See 38 C.F.R. § 3.159(c)(2) and (3). Relevant to the duty to assist, the Board notes that the RO has obtained the Veteran's service medical records, VA treatment records, and medical records from the Social Security Administration (SSA). In addition, the Veteran has been afforded appropriate VA examinations with regard to the disability on appeal. The Board finds that when the Veteran was examined in connection with this claim, the examiners addressed the specific symptoms the Veteran was experiencing and entered diagnoses based on the observed symptoms. In reviewing the evidence throughout the appeal, the Board finds that an adequate assessment of the Veteran's disability picture may be made by a review of the available records. The Veteran has submitted several statements in support of his claim, and he was provided an opportunity to provide testimony before RO personnel in August 1996. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing office who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's August 1996 hearing, the hearing officer explained the issue involving the chronic brain syndrome. See transcript on page 1. The hearing officer specifically asked the Veteran questions regarding the symptoms he was experiencing with respect to chronic brain syndrome. The Veteran's testimony revealed the possibility of outstanding VA treatment records pertaining to his claim. The hearing officer told the Veteran, "I'm going to update your records. We'll get your, I think we've got most everything up until May [1996]. I'll go ahead and get your June, July, August [records]." See transcript on page 20. The record shows that on the same day of the hearing, the hearing officer requested all VA treatment records since May 1996. See VA Form 4509, Correspondence Guide Worksheet. Thus, the Hearing Officer followed through on his promise to the Veteran, and additional VA treatment records were received and associated with the claims file. The Board finds that these actions satisfied the duties a hearing officer has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant, 23 Vet. App. at 492. Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Finally, the Board finds there has been substantial compliance with the July 1999, October 2005, August 2009 and August 2012 remand directives. The Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 ) violation when the examiner made the ultimate determination required by the Board's remand). In the July 1999 remand directives, the Board requested that the Veteran's SSA records and VA treatment records be obtained, that the Veteran should be provided with a VA psychiatric evaluation and the claim should be readjudicated. All of these actions were completed. The purpose of the October 2005 remand directives was to have the agency of original jurisdiction rebuild the part of the Veteran's claims file that was lost. An attempt to rebuild the file was made; however, when the case was back before the Board in August 2009, the Board found that there were additional records that were missing and wanted the agency of original jurisdiction to attempt to obtain these records. The Board also requested that the RO provide the Veteran with VCAA notice, request the Veteran to submit any records in his possession that related to his claim, obtain private and VA medical records, schedule the Veteran for a VA examination and readjudicate the claim. The agency of original jurisdiction complied with all of these remand directives. In the August 2012 remand directive, the Board requested that the RO address both the former and the amended criteria for evaluating the Veteran's chronic brain syndrome, which had been evaluated under a Diagnostic Code that addressed a psychiatric disorder due to head trauma. The Board also requested that VA treatment records be obtained and that the Veteran be provided with a VA examination. All of these remand directives were substantially completed. Based upon the foregoing, the Board finds that the agency of original jurisdiction substantially complied with the mandates of its remands. See Stegall, supra (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a) , § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). This case involves unique circumstances with respect to the Diagnostic Code assigned. Specifically, as noted above, this file needed to be rebuilt. The earliest rating decision in the claims file is from 1998, which shows that the Veteran's service-connected organic brain syndrome was rated under Diagnostic Code 9304, which pertained to dementia associated with brain trauma. Pursuant to the diagnostic criteria then in effect, Diagnostic Code 8045, which pertained to brain disease due to trauma, directed that ratings in excess of 10 percent were to be evaluated under Diagnostic Code 9304. Diagnostic Code 8045 was amended during the appeal period. 73 Fed. Reg. 54,693-54,706 (Sept. 23, 2008). The new rating criteria were made effective on October 23, 2008, and apply to "all applications for benefits received by VA on or after October 23, 2008." Id. at 54,693 (italics added). Thus, these rating criteria do not apply to the Veteran's claim, as his claim was submitted in 1993. The Veteran could, however, have his disability evaluated under the amended criteria if he requested consideration of his disability under this criteria. The evidence does not show that the Veteran requested that his disability be evaluated under this amended criteria; however, in the March 2013 supplemental statement of the case, the agency of original jurisdiction applied the amended criteria to the Veteran's claim. The Board will follow suit, and will address such amended criteria when relevant. The primary disability that the Veteran has as a result of the service-connected chronic brain syndrome involves psychiatric symptoms. Under the former Diagnostic Code 8045, purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, were 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, would be rated 10 percent and no more under Diagnostic Code 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. 38 C.F.R. §§ 4.124a, Diagnostic Code 8045 (prior to 2008). In other words, the former criteria under Diagnostic Code 8045 did not allow for a separate rating for subjective complaints (versus neurological disabilities, which would warrant a separate rating) following trauma to the brain. The amended criteria allow for separately rating subjective symptoms, which will be addressed in more detail below. It is clear from the 1998 rating decision that the RO included the Veteran's headaches and facial paralysis as being part of the service-connected organic brain syndrome, as such symptoms were included in the characterization of the disability. It is reasonable to conclude that the RO determined that the Veteran had multi-infarct dementia or something similar to that to have the Veteran evaluated under Diagnostic Code 9304 at the 30 percent rating, since without such finding, the Veteran could not have received an evaluation in excess of 10 percent for the headaches. The RO also must have concluded that a separate rating was not warranted for the facial paralysis since it did not grant a separate rating. The Board will address the headaches and the facial paralysis after discussing the Veteran's psychiatric symptoms associated with the chronic brain syndrome. Psychiatric symptoms The applicable rating criteria for mental disorders were amended during the pendency of this appeal, effective November 7, 1996. See 61 Fed. Reg. 52695 (Oct. 8, 1996) [codified at 38 C.F.R. § 4.130]. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the Veteran's service-connected organic brain syndrome under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 1991); 38 C.F.R. § 3.114 (2002); VAOPGCPREC. 3-2000 (April 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 117 (1997). The Veteran's claim was readjudicated, most recently, in a March 2013 supplemental statement of the case. Accordingly, there is no prejudice to the Veteran in deciding this appeal based on the amended regulations. See Bernard v. Brown, 4 Vet. App. 384 (1993) (when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the veteran has been given adequate notice to respond and, if not, whether he has been prejudiced thereby). Prior to November 7, 1996, the regulations distinguished between organic mental disorders and psychoneurotic disorders. Under the criteria in effect prior to November 7, 1996, a disability rated under DC 9304 was considered an "organic mental disorder." The general rating formula for organic mental disorders provided for a 30 percent rating for definite impairment of social and industrial adaptability. A 50 percent rating was for assignment where considerable impairment of social and industrial adaptability was shown. A 70 percent rating was for assignment where severe impairment of social and industrial adaptability was shown. Finally, a 100 percent rating was warranted if the medical evidence indicated impairment of intellectual functions, orientation, memory and judgment, and lability and shallowness of affect of such extent, severity, depth, and persistence as to produce total social and industrial inadaptability. See 38 C.F.R. § 4.132, DC 9304 (prior to 1996). In Hood v. Brown, 4 Vet. App. 301 (1993), the Court found that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character. The Court then invited the Board on remand to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for its decision. In a precedent opinion dated on November 9, 1993, VA's General Counsel concluded that "definite" is to be construed as a "distinct, unambiguous, and moderately large degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." See 38 U.S.C.A. § 7104(c) (West 2002). The revised schedular criteria for rating mental disorders reads as follows: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events) - 30 percent. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships - 50 percent. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships - 70 percent. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name - 100 percent. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.1994). A GAF of 81 to 90 is defined as absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). A score ranging from 51 to 60 reflects more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM- IV), for rating purposes]. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent prior to January 15, 2010, and in excess of 70 percent thereafter. In other words, the Board does not find that the Veteran warrants staged ratings that differ from those assigned by the RO. The Board will address each period of time separately. 30 percent rating prior to January 15, 2010 Prior to January 15, 2010, the preponderance of the evidence is against a finding that the Veteran's chronic brain syndrome caused considerable impairment of social and industrial adaptability to warrant a 50 percent rating under the former criteria. The preponderance of the evidence also weighs against a finding that the Veteran's disability caused occupational and social impairment with reduced reliability and productivity to warrant a 50 percent rating under the amended criteria for the period between November 1996 and January 2010. Again, the Board may not apply the amended criteria prior to November 1996. Thus, prior to November 1996, the Board will address only the former criteria, and as of November 1996, the Board will address both criteria. As stated above, VA defined "definite" as having a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93. Prior to 1996, the evidence is against a finding that the Veteran's psychiatric symptoms caused any more than moderate symptoms. For example, when the Veteran submitted an application to the SSA for disability benefits in December 1994, he did not include psychiatric symptoms as a basis for his inability to work. Rather, he attributed it to his service-connected cervical spine disability and a non-service-connected low back disability. See Disability Report (Veteran asked on what disabling condition his claim is based, Veteran responded, "lower vertebraes are broken in two places, upper vertebraes have previously been fused."). In other words, the Veteran did not see his psychiatric symptoms as impacting his ability to work, which is evidence against such symptoms having considerable impairment in industrial adaptability. This perspective is supported by an August 1995 SSA occupational assessment, wherein the examiner found that the Veteran's industrial ability to be fair and/or good. For example, the examiner found that the Veteran's ability to follow work rules; use judgment; understand, remember and carry out complex job instructions; understand, remember and carry out detailed but not complex job instructions; and maintain personal appearance to be "good." The examiner found that the Veteran's ability to understand, remember and carry out simple job instructions was between good and very good. Other capabilities, such as deal with public, interact with supervisor, function independently, maintain concentration, relate predictably in social situations, and demonstrate reliability was determined to be between fair and good. The Veteran's ability to relate to co-workers and behave in an emotionally stable manner were both rated as fair. Lastly, the examiner found that the Veteran's ability to deal with work stresses was between poor/none to fair. While some of the Veteran's occupational functioning skills were rated as fair and one was between none to fair, of the 16 abilities described, the Veteran was found to be fair/good/very good in 12 of the abilities described. The Board finds that such is evidence against a finding that the Veteran's psychiatric symptoms were considerably disabling at that time. Again, when the Veteran was claiming he was unable to work, he was not using psychiatric symptoms as a basis. In August 1995, the psychologist who provided the occupational assessment wrote a letter describing the Veteran's current psychological functioning. The examiner described the Veteran as clean and neatly dressed, having been married for 35 years and having a GED with some work at college. The examiner noted that the Veteran was uncomfortable physically and that he repositioned his body due to low back and leg pain. The examiner wrote, "He seems to deny that he has any personality difficulties" but noted that the Veteran's wife reported personality changes. The summary was that the Veteran showed some residual of organic brain syndrome and had evidence of "mild depression." He noted the Veteran focused much of his psychological difficulties upon physical complaints. Although it is clear that the Veteran manifested psychological symptoms associated with organic brain syndrome at the time of the 1995 evaluation, the severity of such symptoms are not consistent with considerable impairment of social and industrial adaptability, and as such do not support a rating higher than 30 percent. The Veteran was hospitalized at VA in May 1996 for low back pain. The inpatient treatment records show that an examiner described the Veteran as having appropriate skills when interacting with staff and peers and described the Veteran as having no communication problems. Another inpatient treatment record showed that the Veteran had good family support, was in active retirement and had plans of extensive travel with his wife. The examiner wrote, "His active retirement keeps him in healthy contact [with] his community [and] his family" and concluded the Veteran did not require outpatient follow-up for psychological counseling. This evidence tends to make it less likely that the chronic brain syndrome was causing considerable impairment of social and industrial inadaptability. At the August 1996 RO hearing, the Veteran did not complain of psychiatric symptoms in relation to his chronic brain syndrome. Rather, he described headaches and facial drooping. The Veteran was attributing his inability to work to a nonservice-connected low back disability. Thus, the Veteran's own testimony tends to show that his psychiatric symptoms did not cause considerable impairment. Both the former and the amended criteria apply to the evidence of record dated after November 1996. Before explaining why the Board finds that an evaluation in excess of 30 percent is not warranted under either criteria, it will address the holding in a recent case issued by the United States Court of Appeals for the Federal Circuit (Federal Circuit). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-17 (Fed. Cir. 2013), the Federal Circuit held that an evaluation of a mental disorder under § 4.130 requires the assessment of the veteran's occupational and social impairment, as demonstrated by the symptoms listed in the rating schedule or others of "similar severity, frequency, and duration." In this case, in looking at the symptoms and the severity of the symptoms listed under the 50 percent rating, the Board finds that the Veteran's disability picture is not similar to that contemplated by a 50 percent rating. For example, the Veteran underwent VA examination in March 1997, at which time he denied any mental health problems and specifically denied anxiety or depression. He denied memory problems except problems which were due to "old age." He denied suicidal ideation. The examiner quoted the Veteran as saying, "I don't think I have ever had a mental problem." He and his wife were noted to have been married for 36 years, and the Veteran described his relationship with her as being "good without problems." The Veteran told the examiner he had worked for an athletic camp for 12 years and left that job because of back pain. He also told the examiner that he and his wife had driven all around Texas and enjoyed themselves. He stated he helped with the chores around the house. The Veteran reported he was active in "Shriners and the Masonic lodge," which would indicate that he was social outside of his life with his wife and children (his children are not mentioned in this examination report, but are mentioned in other records, and it is clear the Veteran has positive relationships with his three children). The examiner described the Veteran as casually groomed, fully cooperative, "rather affable," lacking anxiety or dysphoria, speech within normal limits, euthymic mood, appropriate affect, logical and tight thought processes and associations, lack of loosening of associations, oriented times three, lacking evidence of hallucinations or delusions, and having adequate insight and judgment. The Veteran had difficulty with remembering the examiner's name five minutes after being told and had some difficulty with serial sevens, but the examiner concluded that a cognitive disorder was "not found." Such symptoms and findings by the medical professional are evidence against a finding that the Veteran's disability was causing considerable impairment in social and industrial adaptability. Additionally, such symptoms are not of the level and frequency of those symptoms listed as examples under the 50 percent rating criteria. In fact, the symptoms described by the examiner based upon his conversation with the Veteran essentially refute those listed under the 50 percent rating. The Veteran continuously made it clear in statements to medical professionals that he did not believe his psychiatric symptoms impacted his ability to work or his relationship with his wife and others during this time period. This evidence tends to make it less likely that the chronic brain syndrome was causing occupational and social impairment with reduced reliability and productivity. The examiner referred the Veteran for neuropsychological evaluation, which was performed that same month. The examiner described the Veteran as being anxious and having "significant motor restlessness." The Veteran was able to communicate with the examiner and reported that he would have physical symptoms involving "spells," and he would not want others around. The examiner attempted to address this issue more specifically, but the Veteran did not want to talk about it. The Veteran specifically denied homicidal and suicidal ideation. The examiner noted that, "[a]t home and within the community, he reported to stay fairly active, including participation in several organizations." After noting specific findings, the examiner concluded there was a pattern of subtle to mild neuropsychological deficits consistent with an impression of possible chronic bilateral cerebral dysfunction, although he described the impact as being "minimal, especially given the absence of any current spontaneous disclosure of cognitively based functional limitation." He noted the Veteran was highly anxious and had low stress tolerance. The 30 percent of the amended criteria specifically contemplates depressed mood, anxiety, and mild memory loss. These clinical findings tend to show that the Veteran's disability picture warrants no more than a 30 percent rating under either the former or the amended criteria. When the Veteran was seen in October 1997, the examiner wrote that the depression screen was "negative." The record does not show which questions were asked that caused the examiner to find that the screen was negative; however, the examiner made a finding that the Veteran did not have depression at that time. This is a pattern shown throughout the record; during the pendency of the appeal, the Veteran has had periods of depression and periods where depression is specifically refuted. This is consistent with a finding that the Veteran's symptoms cause occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This will be addressed in further detail below. The Veteran underwent additional VA examinations in October 1999 and October 2001. The clinical findings reported in both of the associated examination reports are very similar to those reported at the time of the April 1997 VA examination (and were conducted by the same examiner). The Veteran was still married to his wife and described them as getting along well. He also reported he spent time with friends. The examiner again concluded that there was no evidence of a cognitive disorder, nor was there evidence of an anxiety disorder. At the 2001 VA examination, the examiner assigned a GAF score of 90 and noted that he chose this number because of "absent or minimal symptoms and good functioning in all spheres." In a January 2001 private medical record, the Veteran completed a medical history and he circled "No" when asked if he had an anxiety disorder or PTSD. For the same reasons the Board concluded that the April 1997 VA examination report did not support a higher rating (as discussed above), it finds that the October 1999 and October 2011 evaluation reports (and the January 2001 private medical record) do not establish that an evaluation in excess of 30 percent is warranted for chronic brain syndrome. Again, the examiner found that the Veteran did not have a cognitive disorder and had minimal psychiatric symptoms. As an aside, the Board notes that the Veteran was not seeking treatment for psychiatric symptoms and thus there are periods of time where there is a lack of evidence of any psychiatric symptoms, since these symptoms were not ones for which the Veteran sought regular treatment. A December 2006 VA treatment record shows that the Veteran was given a PTSD screen, which was negative. The examiner asked the Veteran about nightmares, whether he tried not to think about something, whether he was constantly on guard and whether he felt numb/detached from others; the Veteran responded "no" to each question. A May 2007 VA treatment record shows the examiner wrote "Depression: No." An October 2007 VA treatment record shows that the Veteran denied depression but reported being anxious easily. In the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, received in February 2008, when asked which disabilities prevented him from working, the Veteran did not include psychiatric symptoms or other cognitive symptoms; rather, he attributed his inability to work to his spine being broken. The Veteran was hospitalized in January 2009, and examiners consistently wrote "no" when asked if he had depression and consistently described the Veteran as alert and oriented times three, cooperative, calm, and cheerful. In one of the records, the examiner noted that the depression screen was negative, which was based upon the Veteran responding "not at all" to whether he had little interest or pleasure in doing things, whether he felt down, and whether he felt depressed or hopeless." That particular examiner described the Veteran as cooperative, calm and cheerful. The symptoms reported in these records are evidence against a finding that the Veteran's chronic brain syndrome was considerably impairing the Veteran with respect to social and industrial adaptability. They are also against a finding that the Veteran's symptoms are more constant as described under the 50 percent rating. Again, the 30 percent rating contemplates occasional periods of decrease in overall functioning, which is what the evidence shows. Going back to the October 2007 VA treatment records, one of the examiners noted that the Veteran reported doing "a little farming for himself" for the past 10 years. This would indicate that while the Veteran left a job in 1994 following a back injury, he was able to go back to some type of work. At no time was the Veteran alleging difficulty in working due to psychiatric or cognitive symptoms. In the October 2007 record, the examiner noted that the Veteran reported difficulty in using a chain saw because of his arms feeling weak. Thus, difficulties that the Veteran was having with his farming involved physical symptoms and not psychiatric/cognitive symptoms. In November 2009, the Veteran was seen for an annual examination, and the examiner wrote that the depression screen was negative. In a December 2012 VA treatment record, under "Psychiatric," the examiner wrote, "Denies any problems." Finally, in October 2012, when an examiner was asked to provide a retrospective opinion regarding the Veteran's ability to work and the severity of the chronic brain syndrome, the examiner noted that the Veteran stopped working following a back injury. She noted the Veteran's past work history and concluded that, "[s]ince a number of companies saw fit to entrust him with significant responsibilities, it does not appear likely that he had any impressive impairment of intellectual function, orientation, memory or judgment." She added that the Veteran was able to marry and raise children. She concluded, "Therefore, he did not appear to have any social impairment, or, if so, this would appear to have been mild in degree." Thus, during this period of time, the preponderance of the evidence is against a finding that the Veteran's impairment related to his chronic brain syndrome caused considerable social and industrial adaptability for both the reasons stated by the October 2012 examiner in providing the retrospective opinion, but also the evidence in the claims file substantiates her opinion as laid out above. Prior to January 2010, the Veteran is reporting no more than moderate symptoms, and, even then, these symptoms come and go. In other words, the preponderance of the evidence is against a finding that the Veteran demonstrated consistent moderate symptoms prior to January 2010. As will be explained below, it was in January 2010 that the Veteran first reported more severe symptoms; hence, the basis for the RO granting a higher rating as of the date of the VA examination. It was only one month before wherein a VA examiner wrote that the Veteran denied any problems when addressing the Veteran's psychiatric system. The 30 percent criteria contemplate a disability that occasionally has more severe symptoms, which negatively impact the Veteran's social and industrial impairment. See also 38 C.F.R. § 4.1 (2013) ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability."). But at no time prior to January 2010 is there evidence that the chronic brain syndrome caused more severe symptoms than those contemplated by the 30 percent criteria under either the former or the amended criteria for all the reason stated above. The 30 percent rating is consistent with the GAF score of 90 assigned by the October 2001 VA examiner, which contemplates absent or minimal symptoms. Such level of severity would not warrant more than a 30 percent rating under either the former or the amended criteria. 70 percent rating as of January 15, 2010 Turning next to the period since January 15, 2010, the Board notes that the RO initially granted a 50 percent rating for chronic brain syndrome effective January 15, 2010. See March 2011 rating decision. However, in a September 2011 rating decision the RO increased the disability rating from 50 to 70 percent, effective January 15, 2010. After carefully reviewing the evidence of record, the Board concludes that the preponderance of the evidence is against an evaluation in excess of 70 percent under either the former criteria or the amended criteria for the period since January 15, 2010. The former criteria provides for a 100 percent rating when there is impairment of intellectual functions, orientation, memory and judgment, and lability and shallowness of affect of such extent, severity, depth and persistence as to produce total social and industrial inadaptability. Under the amended criteria, a 100 percent rating is warranted when there is total occupational and social impairment. The Veteran underwent neurological and psychiatric examinations in January 2010. At the neurological examination, that examiner found that the Veteran was alert, oriented to person, place, time and purpose, was appropriately dressed, and had normal mood and affect. At the psychiatric examination, the Veteran reported nervousness, lack of energy and being jumpy and tense. He denied nightmares, excessive anger, worries or conflicts with others. He stated he was liked by others but that he liked his contact to be limited. The Veteran noted that he had friends who visited him daily and that his children called him daily. (The Veteran's wife passed away in August 2009.) The examiner found that the Veteran had appropriate grooming and hygiene. Speech was clear with good ability to express himself. Affect was nervous and the examiner described the Veteran's overall mood as being anxious. The examiner determined that the Veteran's relationships with others seemed good without a high frequency of contact and a preference for contact rather than being alone. The Veteran was able to remember digits forward with concrete reasoning. Judgment was diminished by the Veteran's anxiety, although the examiner noted that the Veteran was cooperative. He stated that the Veteran had poor concentration. Intensity was moderate with impaired social relationships, occupational functioning and mood and range of activities. The examiner concluded, "[t]he Veteran has reduced reliability and productivity in his occupational and social functioning because of panic, impairment of short and long-term memory, impaired judgment, anxiety, and mild memory loss." He assigned the Veteran a GAF score of 53. A May 2010 VA treatment record shows that an examiner found the Veteran to be appropriately groomed, mood normal, affect appropriate, no abnormal thought patterns, and speech rate appropriate. In June 2010, the Veteran was seen multiple times by VA because of a diagnosis of anemia. The Veteran's daughter informed the examiner that the Veteran had some depressive symptoms over the last six to nine months because of the death of his spouse. The Veteran denied any depressive symptoms. The Veteran was given a depression screen, which was positive and suggestive of moderately severe depression. At that time, the Veteran noted he never had any thoughts of taking his life nor had he ever had any suicidal attempts. The Veteran subsequently was hospitalized at VA in 2011 because of his anemia. During this period of hospitalization, he consistently was described as being alert, having appropriate behavior, being pleasant, cooperative and calm, being oriented to person, place and time and being independent in all activities of daily living. A June 2011 VA treatment record showed a negative depression screen and the examiner finding that the Veteran was alert and oriented with "no" depression or suicidal tendencies. The January 2010 VA examiner wrote an addendum in August 2011 and added that the Veteran's generalized anxiety disorder had a severe impact on the Veteran's ability to obtain and maintain employment. He concluded that this disability would make him unemployable in any normal physical or sedentary job. Lastly, in the October 2012 retrospective opinion, the examiner found that the Veteran had essentially no social impairment, or, if he did, it was no more than mild in degree over the years. In reading through the evidence dated after January 2010, the preponderance of the evidence is against a finding that the Veteran has total occupational and social impairment due to chronic brain syndrome. Both the former and the amended criteria contemplate both total occupational and social impairment. While the August 2011 addendum opinion established that the Veteran would not be able to obtain and maintain gainful employment because of the chronic brain syndrome, such opinion did not establish both total occupational and social impairment. The examiner noted the Veteran did not like a lot of contact with others, but that does not equate to a finding of total social impairment. That examiner assigned a GAF score of 53, which contemplates moderate symptoms-not total symptoms. In reading through the evidence as a whole, the Board finds that since January 15, 2010, the preponderance of the evidence is against a finding that the Veteran's chronic brain syndrome has caused either total social and industrial inadaptability or total social and occupational impairment. Considering the former criteria, the Veteran's memory has been found to be mildly impaired and his judgment has been, at worst, fair, as opposed to lacking judgment. There is no evidence of any disorientation or shallowness of affect. Rather, the Veteran was consistently reported to be oriented times three and cooperative, calm or cheerful when seen by VA professionals. The Veteran's daughter did not describe symptoms similar to the 100 percent rating. Considering the criteria as amended, the evidence does not support a finding that the Veteran has gross impairment in thought processes or communication. The Veteran is able to consistently discuss his feelings with examiners during both examinations and treatment. He was hospitalized in January 2011 (not related to psychiatric or cognitive symptoms), and was consistently described as being alert and oriented and cooperative, calm and cheerful. The Veteran has not shown any grossly inappropriate behavior, hallucinations or delusions, or persistent danger of hurting himself or others. In June 2010, the Veteran reported he had never had any suicidal thoughts or attempts, which is entirely consistent with what the evidence shows since the 1990s. Stated differently, the Veteran has not described having any suicidal thoughts or attempts in the past. The Veteran has no more than mild memory loss, and has consistently been found to be oriented to time, person and place. None of the symptoms described in the August 2011 addendum establish a level of disability that is similar to that contemplated by the 100 percent schedular rating for chronic brain syndrome. The Board has also considered the Veteran's psychiatric symptoms under the amended criteria for evaluating traumatic brain injury. An evaluation under Diagnostic Code 8045 does not assist the Veteran in obtaining higher ratings. In fact, under Diagnostic Code 8045 as amended, a lower evaluation is warranted. Again, the amended criteria would apply only as of September 2008, the date the amended regulation became effective. The amended Diagnostic Code provides that an emotional/behavioral dysfunction should be rated under § 4.130, if there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, then the emotional/behavioral symptoms are to be evaluated under the criteria in the table titled, "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." The evaluation of cognitive impairment contains 10 facets of TBI related to cognitive impairment and subjective symptoms. The October 2012 VA examination report addressed all 10 facets and provided a description of the level of impairment for each facet. Each facet is to be assigned a number ranging from 0 to 3 and a level 5, which is total impairment. Zero (0) represents a normal finding. When there is no "total" facet finding, the rater is to assign the overall percentage evaluation based on the level of the highest facet. In the Veteran's case, the VA examiner assigned zeros (0s) to every facet except "Motor activity," which the examiner assigned a level 2 (which stands for motor activity mildly decreased or with moderate slowing due to apraxia). As the level 2 is the highest facet, such warrants a 40 percent rating. See id. Thus, rating the Veteran's disability under this criteria for the period after September 2008 would not allow for the assignment of a rating higher than 70 percent. Notably, the criteria do not allow for separate ratings for psychiatric symptoms and cognitive impairment. The RO made the same conclusion in the March 2013 supplemental statement of the case in determining that the application of these criteria would not result in a higher rating. Extraschedular Consideration & Conclusion Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board is unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected chronic brain syndrome. The evidence, including the Veteran's own statements, indicates that his psychiatric/cognitive symptoms are contemplated by the rating criteria. Symptoms of nervousness, anxiety, mild memory deficit and lack of interest in being in social situations are contemplated by the rating criteria. The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. Since the available schedular criteria adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. To conclude, for all the reasons laid out above, the Board finds the preponderance of the evidence is against a rating higher than 30 percent prior to January 15, 2010, and in excess of 70 percent as of January 15, 2010, for chronic brain syndrome. There is no doubt to be resolved in connection with the evaluations of this part of the Veteran's disability. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Separate Ratings-Headaches As noted above, the earliest rating decision of record is dated in 1998. This decision shows that the Veteran's disability is rated under Diagnostic Code 9304. The RO characterized the Veteran's disability as chronic brain syndrome with facial spasm and headaches, which would indicate that they characterized it based upon a finding that the Veteran had a brain injury. Brain disease due to trauma is addressed under Diagnostic Code 8045. This is why the Board concludes that the Veteran's disability must have been rated under Diagnostic Code 8045 or at least in compliance with Diagnostic Code 8045 by being rated under Diagnostic Code 9304, as laid out in Diagnostic Code 8045. The former Diagnostic Code 8045 allowed for a separate rating for a neurological disability, but allowed no more than a 10 percent rating for subjective symptoms, such as headaches, which are observable only by the individual experiencing the headache. Additionally, the 10 percent rating would not be combined with any other rating for a disability due to brain disease. Thus, based upon Diagnostic Code 8045, the Veteran would not be entitled to a separate rating for headaches prior to September 2008. On this note, in reviewing the evidence of record prior to the change in the criteria in September 2008, there is evidence that the Veteran was not experiencing chronic headaches. For example, a July 1994 private medical record shows that the Veteran was seen for an acute onset of symptoms (which description of the symptoms is illegible). The examiner noted that the Veteran denied headaches. At the August 1996 hearing, when asked about headaches, the Veteran reported that his face would blow up on the side, which would cause his eye to droop. This appears to be more related to the facial spasm/paralysis, discussed below, than headaches. In February 1999, the Veteran was seen by VA for complaints of two episodes of flashing lights. The examiner wrote that the Veteran denied headaches. In October 1999, at a VA examination, the Veteran reported headaches since the original trauma (the service treatment records substantiate this). In a January 2001 private record completed by the Veteran, he circled "Yes" in response to a history of severe head trauma but circled "No" when asked if he had recurrent headaches or impaired sensorium. At an October 2001 VA examination, the Veteran reported having headaches since the original trauma and stated he would get four or five headaches a month, which would last one hour. A July 2007 private medical record shows that the Veteran specifically denied "any headaches." A September 2007 VA treatment record shows the Veteran was seen for severe neck pain, and the examiner noted the Veteran denied headaches. Thus, it does not appear that the Veteran was having chronic, recurrent and/or severe headaches prior to September 2008. The Veteran reported to the October 2012 examiner that he had not had any severe headaches since five years prior, which would have been in approximately 2007. Due to the criteria under the former Diagnostic Code 8045, a separate rating for headaches is not warranted. However, the amended criteria for Diagnostic Code 8045 provide that when there is a separate disability residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headaches, a separate rating may be assigned even if the symptoms are subjective. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a noncompensable rating is warranted when migraine headaches have less frequent attacks than those described under the 10 percent rating. A 10 percent rating is provided for migraine headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent is provided for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In the October 2012 VA examination report, the examiner diagnosed both non-migraine headaches and migraine headaches. Regardless, a diagnosis of headaches was entered, and the Board finds that a separate, noncompensable rating under Diagnostic Code 8100 is warranted. At the October 2012 examination, the Veteran reported his headaches occurred one to two times a year and that he had not had any severe headaches since approximately five years prior (which would have been in 2007). When asked if the Veteran had prostrating attacks of either migraine or non-migraine pain, he responded "no" to both questions. Such report of facts shows that the Veteran's headache disability picture does not meet the criteria for a 10 percent rating, which is warranted only when there are characteristic prostrating attacks averaging one in two months. Two times a year would not meet this criteria, and the Veteran was not describing prostrating headaches to the October 2012 VA examiner. Thus, a separate 0 percent rating, and no higher, is assigned as of September 23, 2008, under Diagnostic Code 8100. Separate Ratings-Facial Spasm/Paralysis With respect to the facial spasm/paralysis associated with the Veteran's chronic brain syndrome, the Board has reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a separate rating for facial spasm/paralysis. The Veteran is competent to report having facial spasm/paralysis; however, as the clinical evidence does not substantiate either spasm or paralysis, the Board concludes that he is not entitled to a separate rating under either the old or new diagnostic criteria for his facial spasm/paralysis because such complaints are subjective in nature only. For example, on VA examination in the October 2012 VA examination report, the examiner made a specific finding that there was no evidence of any facial paralysis after having examined the Veteran's cranial nerves. This conclusion supports a finding that the Veteran's complaints of facial spasm/paralysis are subjective in nature only, as explained below, and as such do not warrant a separate rating. The helicopter crash that caused the Veteran's chronic brain syndrome occurred in October 1967. Of record are service treatment records, which include the hospitalization records following the October 1967 helicopter crash, which do not show complaints by the Veteran or diagnoses by medical professionals of facial paralysis. A February 1968 Report of Medical Examination shows that examination of the head, face, neck and scalp revealed findings related to the cervical spine only. In a Report of Medical History completed by the Veteran at that time, he specifically denied ever having or having then "paralysis." An October 1969 Narrative Summary shows that the Veteran reported numbness on his face, but that neurological examination revealed no definite findings. A May 1971 Narrative Summary shows that the Veteran complained of headaches, but did not complain of facial numbness. Examination of the cranial nerves were intact except for hearing loss. An attached Report of Medical Examination shows that clinical evaluation of the face was normal. The examiner noted the Veteran's complaints of head pain, but there was no finding of any facial paralysis. A November 1994 private medical record showed that the examiner noted that the face was "symmetrical." (The Veteran did not report facial numbness at that time.) A February 1999 VA treatment record shows that when the Veteran was reporting two episodes of flashing lights, he denied pain and numbness. A January 2001 private medical record shows that the Veteran denied any neurological deficit, to include nerve damage and stroke. A January 2010 VA examination report shows that cranial nerves II through XII were intact. In the October 2012 VA examination report, the examiner stated there was no discernible paralysis found on examination. While the Veteran is competent to report having numbness associated with his face, the clinical findings by medical professionals do not support a finding that these complaints are objective in nature. The October 2012 VA examiner specifically found no paralysis in the Veteran's face. While a 10 percent rating may be assigned under the old diagnostic criteria for subjective neurological manifestations of the Veteran's chronic brain syndrome, such a rating may not be combined with any other rating for a disability due to brain disease. As the Veteran is already in receipt of compensable ratings for his disability due to brain disease, the Board concludes the preponderance of the evidence is against the award of a separate rating under the old diagnostic criteria for facial spasm/paralysis. Similarly, a separate rating is not warranted under the amended diagnostic criteria, as there are no objective manifestations of the facial spasm/paralysis. There is no reasonable doubt to be resolved in reaching this conclusion. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluations in excess of 30 percent prior to January 15, 2010, and in excess of 70 percent thereafter, for chronic brain syndrome due to trauma with facial spasm and anxiety with headaches is denied. Entitlement to a separate noncompensable (0 percent) rating for headaches is granted as of September 23, 2008, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a separate rating for facial paralysis is denied. REMAND As noted in the Introduction, there are informal claims for service connection for myelopathy and neurogenic bladder, both as being secondary to the service-connected fusion of C5-C7 and C7-T1. The Board finds that such issues are inextricably intertwined with the Veteran's claim for entitlement to a TDIU prior to January 15, 2010. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Specifically, if service connection is granted for either or both disabilities, it could impact the disability picture prior to January 15, 2010. Thus, the Board will wait to decide the TDIU issue at this time. Accordingly, the case is REMANDED for the following action: The appellate issue of entitlement to a TDIU rating prior to January 15, 2010, is inextricably intertwined with two of the issues (involving service connection for disabilities as being secondary to the service-connected fusion of C5-C7 and C7-T1) that were referred to the agency of original jurisdiction in the Introduction. Once the agency of original jurisdiction adjudicates the referred claims for (i) entitlement to service connection for myelopathy as secondary to service-connected fusion of C5-C7 and C7-T1 and (ii) entitlement to service connection for neurogenic bladder as secondary to service-connected fusion of C5-C7 and C7-T1, it should readjudicate the claim for entitlement to a TDIU rating prior to January 15, 2010. If the claim remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs