Citation Nr: 1342685 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 11-31 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 10 percent for cognitive impairment, residual of traumatic brain injury (TBI). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from September 2002 to September 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for residuals of TBI and assigned a noncompensable rating from July 10, 2008. In a September 2011 rating decision, the RO granted a higher rating of 10 percent, from July 10, 2008, for cognitive impairment. The RO also granted service connection for chronic paroxysmal hemicranias (CPH) as a residual of TBI, and assigned a separate 30 percent rating from July 10, 2008, for that disability. The Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status. In March 2012 correspondence, the Veteran clarified that he was only seeking a higher rating for the cognitive impairment as a residual of TBI (the original appeal) as he was satisfied with the 30 percent assigned for the CPH, and was not appealing that issue. At this juncture, the Board notes that the RO separately service-connected the residuals of the Veteran's TBI. The Veteran self-limited his appeal to the rating for the cognitive disorder portion. In September 2012, the Veteran testified at a Decision Review Officer (DRO) hearing as to the matter of a higher rating for the cognitive disorder. At his hearing, the Veteran then indicated that he wanted to file an increased rating for the service-connected CPH. That matter was then adjudicated in January and February 2013 rating decisions. An appeal has not been initiated to either of those adjudications. FINDINGS OF FACT 1. Prior to October 23, 2008, the cognitive impairment, residual of TBI, was not productive of multi-infarct dementia. 2. From October 23, 2008, the cognitive impairment, residual of TBI, was not productive of multi-infarct dementia. 3. From October 23, 2008, the cognitive impairment, residual of TBI, resulted in residuals of a highest level of severity for any of the TBI facets of "1." CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent, for cognitive impairment, residual of TBI, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8045-9304 (2004-2008) Diagnostic Code 8045 (2009-2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a July 2008 letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Another VCAA letter was issued in June 2010. The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With regards to the claim for a higher initial rating for cognitive impairment, residual of TBI, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Nevertheless, a VCAA letter specifically pertinent to the "higher rating" issue was sent in June 2010, as noted. Here, in the NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB. Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating, meaning higher than the 10 percent he received after appealing the initial grant of service connection. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Finally, the Veteran testified at an RO hearing. The hearing was adequate as the DRO who conducted the hearing explained the issue and explored possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Historically, the Veteran's claim of service connection for residuals of a TBI was received on July 10, 2008. Thereafter, the Veteran was screened for TBI. The evaluation revealed mild cognitive deficits. Thereafter, also in July 2008, the Veteran was afforded a VA psychiatric examination for post-traumatic stress disorder (PTSD). It was noted that the Veteran served in combat. At that time, the Veteran related that he had been in a truck accident. The truck apparently flipped while the Veteran was inside, but he was unsure if he lost consciousness. On mental status examination, the Veteran's thought processes were organized, rational, and relevant. His concentration seemed good and his memory was good. His judgment could be compromised by stress. His insight seemed intact. In a January 2009 rating decision, service connection for PTSD was granted and a 30 percent rating was assigned. In June 2009, the Veteran was afforded a VA mental disorder examination. The Veteran reported that he had TBI residuals consisting of daily headaches with occasional migraines, light and sound sensitivity, occasional blurred vision, trouble focusing, problems sleeping, agitation and irritability, increasing forgetfulness, fatigue, and occasional tinnitus. The examiner noted that PTSD symptoms and TBI symptoms often interact and many of the Veteran's symptoms were associated with his PTSD. Mental status examination was performed and no cognitive deficits were exhibited, although the Veteran reported, as noted, forgetfulness. However, memory and concentration were intact during the interview. The examiner opined that the Veteran had mild symptoms that may be associated with TBI. The examiner indicated that the memory loss was mild, judgment was normal, social interaction was appropriate, orientation was complete in all spheres, motor activity was normal, and spatial orientation was normal. With regard to subjective behavior, headaches and fatigue were reported. With regard to neurobehavioral effects, the examiner noted that the Veteran reported irritability, but it did not impact social or occupational functioning. Communication and consciousness were normal. The diagnosis was deferred pending an evaluation by a neurologist. In July 2009, the Veteran underwent a private examination as well as a magnetic resonance imaging (MRI) of the brain. The MRI was normal. The examination reported noted that the Veteran had experienced severe pain behind his right eye, but a computerized tomography (CT) was normal. Mental status examination was performed which yielded normal findings. Cranial nerve, motor, reflex, coordination, station, gait, and sensory examinations were normal. The physician indicated that the Veteran had CPH, one of the indomethacin sensitive headache syndromes. He was placed on medications, including narcotics for relief when a headache occurred. In an April 2010 rating decision, service connection was granted for residuals of TBI and a noncompensable rating was assigned from July 10, 2008, under Diagnostic Code 8045. In July 2010, the Veteran was scheduled for another VA psychiatric examination, but the examiner indicated that there had been no change since the June 2009 examination. In July 2010, the Veteran was afforded a VA neurological (TBI) examination. It was noted that the July 2009 MRI was normal. The examiner indicated that the Veteran's condition was stabilized. There was no history of the following: seizures, automonic dysfunction, numbness, paresthesias or other sensory changes, weakness or paralysis, mobility problems, fatigue, malaise, other cognitive symptoms, neurobehavioral change, bowel problems, bladder problems, erectile dysfunction, vision problems, speech/swallowing difficulty, decreased sense of taste or smell, endocrine dysfunction, or cranial nerve dysfunction. With regard to headaches, the Veteran had CPH which occurred 2-3 times per week of an intensity of 7-10. The headaches were prostrating and lasted from 1-2 hours, but could last all day. They were accompanied by dizziness and vertigo as well as photophobia and phonophobia. The Veteran also had problems staying asleep, experienced mood swings, anxiety, and PTSD. The Veteran reported tinnitus. The Veteran's reflex, sensory, muscle, and motor examinations were all normal. There were no physical findings of the following: autonomic nervous system impairment, gait abnormalities, imbalance or tremors, muscle atrophy or loss of muscle tone, spasticity or rigidity, fasciculations, cranial nerve dysfunction, hearing problems, endocrine dysfunction, skin breakdown, vision problems, psychiatric manifestations, or other abnormalities. His MMSE score for cognitive impairment was 30, interpreted as normal. The Veteran complained of mild memory, attention, concentration, and executive dysfunction, but there was no objective evidence of such on examination. The examiner indicated that the Veteran's judgment was normal. His social interaction was occasionally inappropriate. His orientation was normal. His motor activity was normal. His visual spatial orientation was mildly impaired. The Veteran had three or more subjective symptoms which mildly interfered with work, daily living, family, and/or close relationships. He had one or more neurobehavioral effects that did not interfere with work or social interactions. He was able to communicate and his consciousness was normal. It was noted that the Veteran was employed full-time as a construction worker. His diagnosis was CPH due to TBI, indicative that the positive findings on examination were associated with the CPH. The Veteran was also afforded a psychiatric examination. It was noted that there had not been any change in his examination findings from previously. In a September 2011 rating decision, the RO granted a higher rating of 10 percent, from July 10, 2008, for cognitive impairment, under Diagnostic Code 8045. The RO also granted service connection for CPH as a residual of TBI, and assigned a 30 percent rating from July 10, 2008, under Diagnostic Code 8199-8100. In December 2011, the Veteran was afforded another PTSD examination. The Veteran's symptoms of PTSD included difficulty with sleep and concentrating. However, cognitive dysfunction was not shown on examination. In a February 2012 rating decision, an increased rating of 50 percent was granted for the Veteran's PTSD. In September 2012, the Veteran testified at a DRO hearing as to the matter of a higher rating for the cognitive disorder. At that time, he testified that he had problems with his memory with short term memory loss. He said that he would have periods of "zoning out," but that could also be part of his PTSD. At his hearing, the Veteran indicated that he wanted to file an increased rating for the service-connected CPH. In October 2012, the Veteran was afforded a VA headache examination (due to the request for an increased rating). The Veteran was also afforded a TBI examination. The examiner noted complaints of mild memory loss. Judgment was indicated to be normal. The examiner also stated that social interaction was routinely appropriate and orientation, motor activity, and visual spatial orientation were normal. The Veteran had mild subjective symptoms which did not interfere with work, activities of daily living, family, and relationships. He also had one or more neurobehavioral effects that did not interfere with work or social interactions. He was able to communicate and his consciousness was normal. It was noted that the Veteran had headaches. The examiner stated that the Veteran's residual condition did not impact his ability to work. The matter of an increased rating for CPH was then adjudicated in January and February 2013 rating decisions. An appeal has not been initiated. As an initial matter, the Board recognizes that the regulations pertaining to rating TBI was amended in September 2008. See 73 Fed. Reg. 54,693 -706 (Sept. 23, 2008). This new rating criteria is effective October 23, 2008, and applies to "all applications for benefits received by VA on or after October 23, 2008." Id at 54,693. In the present case, the Veteran's claim for an increased rating for his TBI residuals was received by VA in July 2008 and he was rated under the prior Diagnostic Code 8045. However, a veteran whose residuals of traumatic brain injury (TBI) were rated by VA under a prior version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. The effective date of any increase in disability compensation based solely on the new criteria would be no earlier than the effective date of the new criteria. Id. The RO considered the Veteran under both the old and the new, and, as such, his claim will be considered by the Board under the new TBI criteria and both variations of the rating criteria will be considered in the current claim. Prior to October 23, 2008 Under the prior rating criteria, Diagnostic Code 8045 is applicable for brain disease due to trauma. 38 C.F.R. § 4.124a. According to this diagnostic code, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., associated with the injury will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304, and will not be combined with any other rating for a disability due to brain trauma. Finally, ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045. After a review of the record, the Board finds that under the rating criteria applicable prior to October 23, 2008, the 10 percent evaluation previously granted contemplates that purely neurological disabilities following trauma to the brain were to be rated under the diagnostic codes specifically dealing with such disabilities. In this case, the Veteran identified having some memory issues, subjectively. Also, he had headaches. The RO has separately rated the cognitive deficits, the headaches, and the PTSD as well. The headaches have been rated analogous to migraines under Diagnostic Code 8100 and the PTSD has been rated under Diagnostic Code 9411, separately. The remaining complaints of memory issues/cognitive impairment, were not part of either of these disabilities. Thus, a separate 10 percent rating for the subjective complaints remained warranted, albeit under Diagnostic Code 8045-9304. However, a rating of 10 percent cannot be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma, which the Veteran did not have. The record does not indicate that the Veteran had purely neurological disabilities associated with the head injury to be rated under the diagnostic codes specifically dealing with such disabilities, other than those already noted. Thus, for the time period prior to October 23, 2008, a rating in excess of 10 percent was not warranted under Diagnostic Codes 8045-9304. From October 23, 2008 As discussed, new criteria for rating TBI came into effect on October 23, 2008 and the RO considered the Veteran's claim under both the old and new criteria. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As such, the effective date of any increase in disability compensation based solely on the new criteria would be no earlier than the effective date of the new criteria. Under the prior rating criteria for Diagnostic Code 8045, the Veteran still did not demonstrate a diagnosis of multi-infarct dementia associated with brain trauma so that a rating in excess of 10 percent could be assigned. Diagnostic Code 8045 (2004-2008). VA psychiatric evaluations showed that the Veteran had complaints of memory problems. However, on examination, his memory was normal. The amended regulation, Diagnostic Code 8045 (2009-2013) provides for the evaluation of TBI, with the three main areas of dysfunction listed 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. Cognitive impairment should be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2009-2013). Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms should be separately evaluated, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Physical (including neurological) dysfunction is evaluated 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. Id. 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. Id. The need for special monthly compensation is to be considered 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. Id. 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. Id. 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 comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. 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. Id. 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. Id. 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. Id. The table titled "EVALUATION OF COGNITIVE IMPAIRMENT AND OTHER RESIDUALS OF TBI NOT OTHERWISE CLASSIFIED" provides that for Subjective Symptom Facets of cognitive impairment and other residuals of TBI not otherwise classified, a level of impairment of: Zero (0 percent) is provided for 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 (10 percent) is provided for 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 (40 percent) is provided for 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. Id. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury (TBI) not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2009-2013). The RO determined that the Veteran had a level of severity of "1" for the memory, attention, concentration, executive functions facet. The Veteran has made subjective complaints of memory problems. However, objective findings have been normal. Also, as noted, the Veteran is already service-connected for PTSD and attention, concentration complaints and deficits are contemplated under his rating for that disorder (between 30 and 50 percent during the appeal period.) As noted in Diagnostic Code 8045, emotional/behavioral dysfunction, such as PTSD, is evaluated under 38 C.F.R. § 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." As such, the Veteran has been rated for emotional/behavioral symptoms in conjunction with his PTSD. Since the cognitive complaints and deficits have been attributed by VA psychiatric examiners to the PTSD, and the complained of memory loss is mild and not shown objectively, no more than a "1" can be assigned. The Veteran has been found to have a level of severity of "0" for the judgment facet and the social interaction facet as they have been considered as part of the PTSD disability and his judgment is intact. No social deficits are shown to be part of the TBI residuals. In addition, the orientation facet has been properly evaluated as "0" since the Veteran has been found by examiners to be oriented to person, time, place, and situation on his examinations. Thus, an assignment in excess of "0" for these areas is not warranted. A level of severity of "0" has been assigned for the motor activity (with intact motor and sensory system) facet, indicating that an examiner has found evidence of motor activity normal. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as 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). The Veteran's motor examinations are normal. Thus a higher assignment is not warranted. A level of severity of "0" has been assigned for the visual spatial orientation facet, indicating that an examiner has found evidence of normal orientation. A higher level of severity of "1" is not warranted unless an examiner finds evidence such as 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). The most recent examination clarified that the Veteran was normal in this regard and as pertains to his TBI cognitive residuals (as opposed to the separately rated headaches and PTSD). Thus, a higher assignment is not warranted. The RO assigned a "1" for the neurobehavioral effects. The Veteran's neurobehavioral effects do not interfere with employment. Thus, a higher rating is not warranted. A level of severity of "1" was assigned for the subjective symptoms facet, indicating three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Although it appears that mostly there is mild interference due to the separately rated headaches, the impairment in that regard is not moderate. Thus, the "1" assignment was proper. Thus, none of the facets has been assigned, or should be assigned, a percentage more than "1;" as such, a rating in excess of 10 percent is not warranted under Diagnostic Code 8045, under the new criteria. As noted, the Veteran has been assigned a separate rating for headaches under Diagnostic Code 8100. However, the matter of a higher rating under that code is not before the Board at this time. As noted, the Veteran stated that only the cognitive impairment should be addressed in connection with this appeal. Likewise, the PTSD has been separately rated and is not under appeal herein. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, preponderance of the evidence is against a rating in excess of 10 percent for cognitive impairment, residual of TBI, under either the old or the new criteria. The Board observes that the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing or witnessing memory problems, etc. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds, however, that the statements provided by the Veteran regarding the effects of his current residuals of a head injury on his daily life are competent and credible but are outweighed by the objective evidence of record which demonstrates that his TBI residuals are no more than 10 percent disabling. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 Veteran'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." 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's cognitive impairment, residual of TBI, are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The Veteran is employed full-time and has not been hospitalized. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for cognitive impairment, residual of TBI, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs