Citation Nr: 1402829 Decision Date: 01/23/14 Archive Date: 01/31/14 DOCKET NO. 08-02 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a disability rating in excess of 50 percent for cognitive disorder due to traumatic brain injury (TBI) with mild stuttering, status post motor vehicle accident. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from May 1991 to December 1991 and from October 2001 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in August 2007 of the above Department of Veterans (VA) Regional Office (RO). Initially, in October 2004, when the Veteran filed his claim for increased evaluation, his headaches were combined with his cognitive disorder and mild stuttering as residuals of TBI. Throughout the appeal period, the posttraumatic migraine headaches were associated and considered in the 50 percent evaluation for his TBI residuals until such were separately rated in a January 2009 rating decision and assigned a 10 percent evaluation, effective April 20, 2007. However, the Veteran did not submit a substantive appeal for this particular issue following the issuance of the April 2009 statement of the case (SOC), which also increased the evaluation for headaches to 30 percent beginning December 15, 2006. None of the written contentions submitted by the Veteran or his representative either in conjunction with, or following the April 2009 SOC, serve to perfect an appeal as to this issue. Moreover, the RO did not certify the issue as being on appeal. Accordingly, the issue of entitlement to a disability rating in excess of 30 percent for post-traumatic migraine headaches is not in appellate status, and no further consideration is required as to this matter. The claim for an increased rating for cognitive disorder due to traumatic brain injury (TBI) with mild stuttering, status post motor vehicle accident was previously before the Board in September 2011 and remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action. After completing the additional development, the AMC continued to deny the claim (as reflected in a June 2012 supplemental statement of the case), and returned this matter to the Board for further appellate consideration. The Board has reviewed the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all the evidence. FINDINGS OF FACT 1. At all times relevant to this decision, the Veteran's cognitive disorder due to TBI has been manifested by social and occupational impairment that most closely approximates reduced reliability and productivity. 2. From October 23, 2008, the level of impairment from all of the ten facets of TBI related to cognitive impairment and subjective symptoms has been "2" or less. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for cognitive disorder due to TBI with mild stuttering, status post motor vehicle accident are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, 4.130, Diagnostic Codes (DCs) 8045 and 9304 (prior to October 23, 2008); 38 C.F.R. §§ 4.124a, 4.130, DCs 8045 and 9304 (effective October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2004 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if increased entitlement is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in August 2007. Nothing more was required. A July 2008 letter notified the Veteran of the types of evidence that may reflect a worsening of his service-connected residual cognitive disorder, including the nature and symptoms of the condition; the severity and duration of the symptoms; and the impact of the condition and symptoms on employment and daily life; ongoing treatment records; recent Social Security determinations; statements from employers as to job performance, lost time or other information regarding how the condition affects his ability to work; and statements from people who have witnessed how the claimed disability affects him. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Any timing defect of this correspondence was cured by the RO's subsequent readjudication of the claim and issuance of a Supplemental Statement of the Case in August 2008. [In any event, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board.] VA has also satisfied its duty to assist the Veteran in the development of his claim. In-service treatment records and pertinent post-service records have been obtained and associated with his claims folder, or are otherwise viewable on the Virtual VA electronic database. The Veteran has availed himself of the opportunity to submit relevant documents and argument in support of his claim, including personal statements and representative argument. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was afforded VA examinations in April 2005 and April 2007. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that, collectively, these examination reports are thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected residual cognitive disorder under the applicable rating criteria. The Board has also found substantial compliance with its September 2011 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). A VA examination to address the current severity of his TBI residuals was obtained in October 2011. Outstanding VA treatment records, available through the Compensation and Pension Records Interchange (CAPRI), have been uploaded to the Veteran's Virtual (electronic) VA folder. VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence, to support his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks a disability rating in excess of 50 percent for his service-connected cognitive disorder with mild stuttering due to TBI. Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran's cognitive disorder due to TBI with mild stuttering, is currently rated as 50 percent disabling under DC 9304 for dementia due to head trauma. See General Formula for Mental Disorders, 38 C.F.R. § 4.130. [The Board observes that in addition to receiving a compensable rating for his cognitive disorder, the Veteran is also separately rated for headaches rated as 30 percent disabling; mild left hemiparesthesia, rated as 20 percent disabling; and multiple skull fractures rated as noncompensable as residuals of head trauma.] Effective October 23, 2008, VA amended the criteria for rating residuals of TBIs, or more specifically, neurological and convulsive disorders, including under DC 8045. 73 Fed. Reg. 54,693, 54,708 (Sept. 23, 2008). This amendment applies to applications received by VA on and after October 23, 2008. The former criteria apply to applications received by VA before that date. A veteran whose residuals of TBI VA rated under DC 8045 prior to the amendment, however, is permitted to request review under the amended criteria regardless of whether his disability has worsened since the last review or VA receives additional evidence. The effective date of any increase in disability compensation based solely on the amended criteria must be no earlier than October 23, 2008, the effective date of the amended criteria. In this case, even though the Veteran did not make a specific request to this effect, the Board found that he was entitled to a new examination and review of his appeal pursuant to these regulatory changes. See September 2011 Board Remand. Turning to the evidence of record, during VA psychiatric examination in April 2005, the Veteran noted increased job stress and difficulty meeting production demands. He reported that he had been employed as a cook for the past five years and was recently moved to a different area where the food preparation, routines, and recipes were more complicated. The Veteran was married with no children. The examiner noted that since the last examination in April 2003, the Veteran had not been hospitalized for any psychiatric treatment. During the mental evaluation, the examiner noted the Veteran was neatly dressed and groomed. He was alert, fully oriented, and spontaneously conversational. His speech was modestly increased in rate, flow and volume with episodic preservation and word finding difficulty. Nonetheless goal-directedness and comprehensibility were not significantly impacted. The Veteran's critical judgment was intact and insight was fair. However he continued to exhibit lacunae in remote memory and had a moderate impairment of new learning capacity. The Veteran's mood was mildly elevated and his affect was broad and generally appropriate to the content of his speech. He denied suicidal or homicidal ideation, but noted continued limited frustration tolerance, irritability, angry outbursts, and distractibility. Falling and remaining asleep was also a problem in that the Veteran reported that he was neither rested or refreshed upon arising in the morning and as a result his energy level and motivation were low. The clinical impression was cognitive disorder not otherwise specified. A GAF score of 48 was assigned. When examined by VA in April 2007, the examiner noted that since the previous examination in 2005 there had been no hospitalizations or major life circumstance changes for the Veteran. He remained married to his wife of three years and remained employed as a cook, a job that he enjoyed. Clinical findings on psychiatric evaluation were also essentially unchanged. The Veteran was casually dressed, alert, fully oriented, and cooperative. He was not spontaneously conversational, but responded to the examiner's questions. His speech was fluent, goal-directed, and within normal limits, with occasional hesitancies and apparent inefficiencies in word finding. The content of the Veteran's verbalizations reflected logical thought process, intact critical judgment, and fair insight. Remote memory was marked by lacunae and new learning was mildly impaired. The Veteran was neither thought disordered nor delusional and denied both auditory and visual hallucinations. His mood was mildly anxious though his range of affect was broad and appropriately reactive. The Veteran endorsed persistent worry about his job performance, the possibility of losing his job and his financial status. He denied suicidal and homicidal thoughts. He characterized his marital relationship as strong and supportive. He spends his free time working around the house and occasionally going out with this wife. The clinical impression was cognitive disorder secondary to brain injury. The examiner noted the Veteran continued to evidence signs of mild cognitive impairment, both qualitatively and quantitatively at a level similar to that reported in the two prior mental disorder examinations in 2003 and 2005. Since the previous examination, the Veteran reported neither a significant abatement nor a remission of symptoms, but noted functional improvement in consequent of a memory aid (Palm Pilot). Though anxious and apprehensive, the irritability and reduced frustration tolerance noted in the last examination have abated. The Veteran's current symptoms were considered moderate, reflected in an increased GAF score of 50. VA outpatient treatment records dated from 2005 to 2011 in general show the Veteran's language and cognition were both intact. He noted that his work environment was somewhat better, but still stressful. See VA Neurology Outpatient Note dated April 4, 2006. The more recently dated records show the Veteran was examined by VA in June 2010. His history of closed-head injury as a result of the 2002 motor vehicle accident and his current medical problems were summarized and an examination was performed. He did not report any significant mood or anxiety symptoms or symptoms suggestive of a psychotic disorder. A GAF score of 65 was assigned. The examiner noted the Veteran's symptoms were not considered severe enough to interfere with occupational and social functioning. These records also show that the Veteran was seen for a neuropsychological examination to assess his cognitive and emotional status. His presentation was consistent with orientation to the situation and free from any apparent confusion. His speech was fluent, logical, organized and goal directed. His affect was somewhat restricted in range and he avoided eye contact during the evaluation, though he was friendly. The Veteran engaged in the assessment and was cooperative. In terms of his relationships with others the Veteran remained married and maintained contact with both of his parents and five siblings. He said that he did not have many friendships outside of his immediate family, but felt close to important people in his life. His psychiatric history was reportedly uncomplicated. Cognitive testing revealed that the Veteran's performance was somewhat mixed, as there was some evidence of suboptimal effort on testing, so some caution was used when interpreting the results. He exhibited consistent difficulties with complex attention, learning, memory, and executive functioning. He also reported significant anxiety during the interview related to worry about his financial condition and represented himself as an individual who may experience depression, anxiety and have difficulty with differentiating physical symptoms from emotional difficulties. However the VA examiner also noted that it appeared that the Veteran had adapted "reasonably well" to his deficits and had successfully been able to maintain employment, though he indicated that "performing well at work and in his daily functioning required extra effort and practice on his part." See VA Neuropsychology Consult Response, dated July 15, 2010. A later entry shows the Veteran underwent additional evaluation of his TBI residuals and at that time reported headache, poor memory, occasional anxiety, difficulty finding words during conversation, and left side numbness, but denied weakness, trouble in swallowing or balance problems. He continued to work full time as a chef and was independent in activities of daily living and ambulation. See VA TBI Consult Response, dated September 7, 2010. In October 2011, the Veteran was afforded a VA examination specifically designed to obtain clinical information pertinent to rating traumatic brain injuries under the revised criteria set forth above. He reported migraine headaches, left-sided paraesthesia and numbness, stuttering of speech, blurred vision, tinnitus and sensitivity to sound, lights and movements. He also complained of dizziness, sleep disturbance, fatigue, malaise, abnormal memory function, slowness of thought, poor attention and concentration. He also reported mood swings, anxiety, depression, and hearing problems. He denied seizures. On examination memory attention, concentration, executive functions, evaluation the Veteran had a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or findings words, or often misplacing items), attention concentration or executive functions, but without objective evidence on testing. Judgment, social interactions, orientation (including visual spatial orientation) motor activity, communication, and consciousness were all normal. The Veteran had three or more subjective symptoms of occasionally acute migraine headache, blurred vision and stuttering and an inability to concentrate, tinnitus and paraesthesia and numbness of the left side that mildly interfere with his performing work or home-related duties. There were no neurobehavioral effects. The examiner concluded the Veteran's residual conditions attributable to his TBI did not impact his ability to work. The Veteran complained of some sensory dysfunction and headaches. After the examiner's review of the claims file, history, and physical examination of the Veteran, the clinical impression was status post head injury with likely moderate TBI residuals of migraine headaches with occasional subjective symptoms of mild left hemiparaesthesia, but no objective evidence of neurological deficit. The record reflects that the Veteran's service-connected cognitive disorder has been manifested by essentially unchanged symptoms throughout the pendency of the appeal. The record establishes that the Veteran's impairment has primarily been manifested by mild memory and learning difficulties. Although his symptoms have remained essentially the same, the regulation used to evaluate those symptoms has changed, as set forth in detail below. Therefore, the analysis under each version of the regulation is set forth separately. For the periods both prior to and after October 23, 2008 Under prior rating criteria, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., DC 8045-8207). 38 C.F.R. § 4.124a. Purely subjective complaints such as headaches, dizziness, insomnia, etc., are recognized as symptomatic of brain trauma and rated at 10 percent, and no more, under DC 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Id. According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), multi-infarct dementia is manifested by both memory impairment (impaired ability to learn new information or to recall previously learned information) and one or more of the following cognitive disturbances: language disturbance (aphasia); impaired ability to carry out motor activities despite intact motor function (apraxia); failure to recognize or identify objects despite intact sensory function (agnosia); disturbance in executive functioning (i.e., planning, organizing, sequencing, abstracting). As noted above, the Veteran is in receipt of separate disability ratings for headaches, as a purely subjective complaint, and for left hemiparesthesia as a purely neurological disability. The Board notes that while multi-infarct dementia has not been specifically identified or diagnosed, the RO has clearly determined that the Veteran's residual cognitive impairment due to TBI met the criteria for a 50 percent rating under DC 9304. 38 C.F.R. § 4.124a, DC 8045 (2008). Disabilities rated under DC 9304 use the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. This diagnostic code's criteria have not changed during the appeal period. The RO has continued this rating throughout the appeal period. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is warranted for 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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9304. A 70 percent evaluation requires 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is 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. Id. Applying the Veteran's symptomatology to the rating criteria noted above, it is apparent that his cognitive impairment does not more nearly approximate the criteria for a 70 percent or higher rating. Although the Veteran contends that the severity of his condition is beyond what the 50 percent evaluation contemplates, the Veteran's pattern of symptomatology and manifestations are productive of no more than reduced reliability and productivity. Rather, the relevant clinical findings in general show that his symptoms have been under control to a large degree over the years. The Veteran does not have significant disturbance of affect or mood, speech suggestive of disorders of thought or perception, difficulty understanding commands, or impairment of memory, judgment, or abstract thinking. He has also required no regular outpatient psychiatric treatment or hospitalizations. In addition the Veteran has the ability to establish and maintain effective relationships as shown by his marriage to his wife, who is supportive, and his good relationships with his parents and siblings. There is also no evidence that the Veteran had significant decreases in work efficiency. The Board also finds it probative that despite his cognitive disorder, he has been able to maintain his work relationships sufficiently to relatively stable in his employment, most recently as a chef. Although the Veteran did exhibit memory impairment, it is not indicative of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, as is required for the next higher evaluation of 70 percent. Bowling v. Principi, 15 Vet. App. 1, 11 (2001); Vazquez-Claudio v. Shinseki, 2012-7114, (Fed. Cir. Apr. 8, 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). Other symptoms of the type required for a higher 70 evaluation are neither complained of nor observed by medical health care providers, including obsessional rituals, illogical, obscure, or irrelevant speech, or impaired impulse control. The Veteran has not been shown to have symptoms equivalent in nature or severity to the criteria required for a higher rating. There is also no evidence of psychotic symptoms or cognitive deficits. In general, the Veteran was adequately groomed and able to take care of himself physically. The evidence also does not show spatial disorientation - the substantial weight of the evidence shows that he was alert and oriented in all spheres. As demonstrated by his marriage and ability to work, the Veteran also does not experience total occupational and social impairment. His disorder is also not manifested by symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior or the persistent danger of hurting himself or others, which would be necessary for a 100 percent rating. In reaching this determination, the Board notes that various medical personnel, who have examined the Veteran on an outpatient basis for treatment purposes or have evaluated him to assess the nature, extent and severity of his service-connected PTSD, have estimated GAF scores of 48, 50, and 65. Such denote mild to serious symptoms (e.g., depressed mood, mild insomnia, suicidal ideation, severe obsessional rituals, frequent shoplifting) to mild to serious impairment in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household, no friends, unable to keep a job) symptoms social and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). Simply stated, when considered in light of the actual symptoms shown, this GAF score does not provide a basis, alone, for assignment of a 70 percent rating or higher for the Veteran's PTSD. Accordingly, the Board finds that the Veteran's cognitive disorder is more consistent with a 50 percent rating and that the level of disability contemplated in DC 9304 to support the assignment of a 70 percent or rating or higher is absent. For the period beginning on and after October 23, 2008 Under DC 8045, as amended, residuals of TBI are to be rated based on cognitive impairment, emotional/behavioral dysfunction and physical dysfunction. Subjective symptoms, such as migraine headaches, may be the only residual of a TBI, or they may be associated with cognitive impairment or other areas of dysfunction. Because migraine headaches represent a residual with a distinct diagnosis, they are to be rated under the DC governing ratings of that diagnosis, not pursuant to the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a (2013). Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; any 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 Consideration is given to the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. 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. For the memory, attention, concentration, executive functions facet a "0" level of impairment is assigned with no complaints of impairment. A "1" level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A "2" level is assigned with objective evidence on testing of mild impairment. A "3" level is assigned with objective evidence on testing of moderate impairment. A "total" level is assigned with objective evidence on testing of severe impairment. For the judgment facet a "0" level of impairment is assigned for normal judgment. A "1" level is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A "2" level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. A "3" level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A "total" level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities. For the social interaction facet a "0" level of impairment is assigned when social interaction is routinely appropriate. A "1" level is assigned when social interaction is occasionally inappropriate. A "2" level is assigned when social interaction is frequently inappropriate. A "3" level of impairment is assigned when social interaction is inappropriate most or all of the time. For the orientation facet a "0" level of impairment is assigned when always oriented to person, time, place and situation. A "1" level is assigned when occasionally disoriented to one of the four aspects of orientation. A "2" level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A "3" level is assigned when often disoriented to two or more of the four aspects of orientation. A "total" level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the motor activity facet (with intact motor and sensory system) a "0" level of impairment is assigned for normal motor activity. A "1" level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A "2" level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A "3" level is assigned for motor activity moderately decreased due to apraxia. A "total" level is assigned for motor activity severely decreased due to apraxia. For the visual spatial orientation facet a "0" level of impairment is assigned when normal. A "1" level is assigned when 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). A "2" level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS. A "3" level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A "total" level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. For the subjective symptoms facet a "0" level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or the Veteran's work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A "1" level is assigned with 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). A "2" level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, the Veteran's 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). For the neurobehavioral effects facet a "0" level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A "1" level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A "2" level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A "3" level is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. For the communication facet a "0" level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A "1" level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A "2" level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A "3" level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A "total" level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs. For the consciousness facet a "total" level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. 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. Note (5): A veteran whose residuals of TBI are rated under a version of § 4.124a, diagnostic code 8045, in effect before October 23, 2008, may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR § 3.114, if applicable. Id. Applying the new criteria to the facts summarized above, a disability rating in excess of 50 percent for head injury residuals in not warranted under DC 8045 effective October 23, 2008. As stated previously, the disability rating is based on the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury not otherwise classified as determined on examination. Here, the 2011 VA examiner found that the Veteran's judgment, social interaction, orientation, motor activity, and visual spatial orientation were all normal. This is squarely within the schedular criteria for level "0" impairment. A higher level of impairment of "2" (40 percent) for these facets requires evidence that the Veteran has moderately impaired judgment; social interaction that is frequently inappropriate; occasionally disoriented to either person, time, place or situation; mildly decreased motor activity or moderate slowing due to apraxia; or moderately impaired spatial orientation, none of which is shown in this case. A level of severity of "1" is assigned for the memory, attention, concentration and executive functions facet, indicating that on testing the examiner recorded complaints of mild memory loss, but without objective evidence of such on testing. A higher level of severity of "2" (40 percent disability) is not warranted unless there is objective evidence on testing of mild impairment. A level of severity of "2" has been assigned for three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family or other close relationships. In this case, the Veteran complained of intermittent dizziness, daily headaches, tinnitus, frequent insomnia, and hypersensitivity to sound and light. However there was no indication that these symptoms were significant or interfered or prevented the Veteran from performing work or home-related duties. A level of severity of "0" has been assigned indicating that an examiner has found no evidence of neurobehavioral effects significant enough to interfere or prevent him from being able to perform work or home-related duties. A higher level of severity of "2" (40 percent) is not warranted unless an examiner finds evidence of one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction or both but do not preclude them. Finally a level of severity of "0" has been assigned for the communication facet, indicating that the examiner has found evidence that the Veteran was able to communicate by spoken and written language and able to comprehend spoken and written language. Likewise for the consciousness facet the examiner noted the Veteran was conscious with normal affect and mood. The Board accordingly finds that neither facet approaches level "2" degree of impairment. In this case, the most severe level of impairment for any of the 10 facets of TBI related to cognitive impairment and subjective symptoms was the level "2" impairment for the social interaction facet. Because an evaluation higher than 50 percent requires that at least one of the facets be impaired at level "3" or above the criteria for higher rating are not met. In addition, as has been noted throughout, the Veteran already receives separate compensable ratings for his headaches and left hemiparestheisa. Thus, the Board concludes that the severity of the Veteran's cognitive disorder has been fully contemplated by the 50 percent rating. The Board must determine whether the schedular rating is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of an award of an extraschedular rating. Otherwise, the schedular rating is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation is adequate in the present case. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected TBI residuals, but the medical evidence reflects that those manifestations are not present here. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. Finally, it has recently been held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected TBI residuals prevent him from obtaining and maintaining gainful employment. Rather the Veteran has remained employed full time throughout the entire appeal period. Thus, any further consideration of the Veterans claim under Rice is not warranted at this time. Thus, the current level of disability shown is encompassed by the rating assigned and with due consideration to the provision of 38 C.F.R. § 4.7, a higher evaluation is not warranted for this disability for any portion of the time period under consideration. Hart, supra. A preponderance of the evidence is against the claim adjudicated herein. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER A disability rating in excess of 50 percent for cognitive disorder due to traumatic brain injury (TBI) with mild stuttering, status post motor vehicle accident, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs