Citation Nr: 1418691 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 11-26 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an increased rating for service-connected traumatic epilepsy, currently rated as 10 percent disabling. 2. Entitlement to an initial rating higher than 10 percent for service-connected traumatic brain injury (TBI). REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to May 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In June 2012, the Veteran testified in a video conference hearing before the Board. A transcript of the hearing has been included in the record. The record in this matter consists of paper and electronic claims files and has been reviewed. No relevant documentary evidence has been added to the record since the March 2012 supplemental statement of the case (SSOC). 38 C.F.R. §§ 19.31, 20.1304(c) (2013). During the June 2012 hearing, the Veteran asserted that he filed a timely appeal against a May 2011 rating decision, which denied service connection for dental, knee, and shoulder disorders. The record does not currently contain evidence of a timely appeal, however. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. As such, the issue regarding whether a timely appeal had been filed on the March 2011 rating decision is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran has not experienced an epileptic seizure during the appeal period. 2. The evidence of record demonstrates that the Veteran has not experienced residuals of his TBI during the appeal period other than subjective complaints of diminished executive functions and a mildly impaired sense of smell. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, for service-connected traumatic epilepsy, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2013). 2. The criteria for a rating in excess of 10 percent, for service-connected TBI, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A. 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the initial RO decision by way of a November 2010 letter to the Veteran that informed him of his duty and the VA's duty for obtaining evidence. In addition, the letter met the notification requirements set out for service connection, and for effective dates and disability ratings, in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent private and VA treatment records and reports, and in providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the claims has been obtained. VA provided the Veteran with a hearing before the Board to provide testimony in support of his claims. VA obtained the Veteran's STRs, and VA medical evidence pertaining to his claims (during the hearing, the Veteran indicated that all relevant treatment was provided by VA). Moreover, VA provided the Veteran with medical examinations into his claims for higher ratings. The Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. The Claims for Increased Rating The Veteran seeks higher disability ratings for his service-connected traumatic epilepsy and traumatic brain injury. The record indicates that the Veteran experienced a head injury during service while roller skating. He has been service connected for traumatic epilepsy since June 1981 (just after his discharge from service), and has been rated as 10 percent disabled since then. On November 9, 2010, he filed a claim for increased rating. In that claim, he also asserted entitlement to service connection for TBI based on the in-service roller skating accident. In the January 2011 rating decision on appeal, the RO denied the claim for increased rating for traumatic epilepsy, but granted service connection for TBI, assigning a noncompensable rating. In a subsequent rating decision issued during the pendency of the appeal, a 10 percent rating was assigned for TBI, effective the date of the November 9, 2010 claim. The Veteran continues to seek a higher rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board will consider whether a higher rating has been warranted for traumatic epilepsy, from November 9, 2009 (one year prior to the date of the Veteran's claim for increased rating) at any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. With regard to the claim for a higher rating for TBI, the Board will consider whether a higher initial rating has been warranted from the date of claim for service connection on November 9, 2010. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. A claimant's specific occupation is not for consideration under the Rating Schedule. Separate diagnostic codes identify the various disabilities. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. 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 shall be given to the claimant. 38 U.S.C.A. § 5107(b). Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran's TBI has been rated under Diagnostic Code (DC) 8045 of 38 C.F.R. § 4.124a, while his traumatic epilepsy has been rated under DC 8911, also of 38 C.F.R. § 4.124a. Initially, the Board will outline relevant diagnostic criteria for each DC. The Board will then address the relevant evidence of record dated since November 2009. Traumatic Epilepsy Epilepsy is rated under the General Rating Formula for Major and Minor Epileptic Seizures. 38 C.F.R. § 4.124a (2013). The General Rating Formula for Major and Minor Epileptic Seizures provides that a confirmed diagnosis of epilepsy with a history of seizures, is rated as 10 percent disabling. A confirmed diagnosis of epilepsy with at least one major seizure in the last two years; or at least two minor seizures in the last 6 months, is rated 20 percent disabling. Epilepsy averaging one major seizure in the last 6 months or two in the last year; or averaging at least five to eight minor seizures weekly, is rated 40 percent disabling. Epilepsy averaging at least one major seizure in 4 months over the last year; or nine to ten minor seizures per week, is rated 60 percent disabling. Epilepsy averaging at least one major seizure in 3 months over the last year; or more than ten minor seizures weekly is rated 80 percent disabling. Epilepsy averaging at least one major seizure per month over the last year is rated 100 percent disabling. 38 C.F.R. § 4.124a, DC 8911. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, DC 8911, Note (1), (2). Traumatic Brain Disorder Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: Cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. This DC states the following: Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluate 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 a traumatic brain injury 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, and labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Note (5): A Veteran whose residuals of a traumatic brain injury 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 purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). Analysis The relevant evidence of record consists of VA treatment records dated since 2009, VA compensation examination reports dated in December 2010 and January 2012, and the Veteran's lay statements to include his testimony before the Board in June 2012. This evidence demonstrates that the Veteran has not experienced an epileptic seizure during the appeal period, and that he has not experienced during the appeal period any other residuals related to the in-service TBI with two exceptions: subjective complaints of impaired executive functioning, and a mildly diminished sense of smell. VA treatment records show that the Veteran visited the VA medical center on several occasions since late 2009, complaining of accidents, falls, and injuries related to what he perceived to be seizures due to his TBI. As will be detailed further below - in the discussion of two VA compensation examination reports - the treating VA medical personnel did not find evidence indicating that the Veteran had experienced the seizures he claims. The VA treatment records detail medical testing the Veteran has undergone since 2009, to include CT scanning, electroencephalogram (EEG), and magnetic resonance imaging (MRI) of his brain, which has resulted in negative findings. Further, the treatment records repeatedly note concern among VA treating personnel of the Veteran's documented substance abuse history, and his possible drug-seeking behavior during visits to VA. The treatment records also indicate that, though the symptoms described by the Veteran do not approximate those for epileptic seizures, they may be related to syncope, a heart disorder, or a somatization disorder. Records dated in January 2012 indicated that a VA heart examination found "no structural cause" for possible syncope and found no evidence of intra-cardiac shunt. In any event, none of the VA treatment records tends to support the Veteran's contention that he has experienced significant TBI residuals - to include epileptic seizures - during the appeal period. The December 2010 VA examiner indicated a review of the claims file, an examination of the Veteran, and an extensive interview of the Veteran. The examiner noted the Veteran's complaints of daily seizures and of experiencing urinary incontinence during seizures. The Veteran also reported experiencing a loss of taste and smell, and of experiencing serious headaches once or twice a week, persistent dizziness, hypersensitivity to light, diminished memory, impaired attention and concentration, and impaired executive functions such as diminished ability to plan, organize, prioritize, self monitor, and problem solve. The examiner also noted that the Veteran had been treated for attention deficit disorder, bipolar disorder due to substance abuse, panic disorder, and posttraumatic stress disorder (PTSD) related to childhood abuse. The examiner conducted cognitive and neurological testing and found the Veteran to be unaffected by his in-service injury. The examiner noted a mental status examination which indicated normal results. The examiner described the Veteran as fully oriented. The examiner questioned the Veteran's reported impaired sense of taste and smell, noting that the Veteran had not reported any of these symptoms during his VA treatment in recent years. The examiner noted the Veteran's hearing and visual/spatial capacities as normal, and noted no nystagmus. The examiner noted normal reflexes and motor skills, despite the Veteran's orthopedic difficulties (not subject to this appeal). The examiner noted no sensory deficits, normal coordination, normal gait, normal communication, and normal consciousness. The examiner characterized the Veteran's judgment as normal. The examiner noted a July 2009 CT scan of the head, which was unremarkable. In closing the report, the December 2010 VA examiner characterized the Veteran's in-service head injury as mild. The examiner noted that the Veteran had been service connected for impaired smell, and continued to exhibit "partial loss of sense of smell" from the TBI. The examiner found the Veteran's epilepsy to be a mild disorder as well, and noted the lack of evidence of an ongoing seizure disorder since separation from service (despite the Veteran's contentions to experiencing frequent seizures). Indeed, the examiner questioned the Veteran's credibility, noting that the Veteran had previously indicated that he had not experienced seizures since the early 1980s. Further, the examiner found "no persuasive evidence" that supports the Veteran's claim that his TBI caused impaired taste, headaches, dizziness, hypersensitivity to light, and cognitive impairment. Lastly, the examiner noted that the Veteran had been diagnosed with psychiatric problems, but that "there is no evidence in the medical record that any of the Veteran's psychiatric conditions are directly related to TBI." Further, the examiner indicated that "emotional/behavioral" problems were related to the psychiatric disorders rather than to the TBI. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In January 2012, the Veteran underwent the second VA compensation examination. This examiner similarly noted the absence of significant residuals related to the in-service accident. The January 2012 examiner indicated an examination of the Veteran, an extensive interview of the Veteran, a review of previous VA examination reports, and a review of computerized medical records dated from January 2011. The examiner noted that the Veteran had self-reported to the emergency room multiple times, complaining of accidents and falls due to disability associated with his asserted complaints of "daily, multiple seizures." The Veteran told the January 2012 examiner that he experienced a significant seizure in June 2011 which caused him to experience a motor vehicle accident. The examiner discussed in detail the VA treatment records which note the Veteran's complaints of frequent "seizures." Notes in the records indicate that treating personnel found no persuasive evidence to support the Veteran's reports of experiencing epileptic seizures. The January 2012 examiner also noted VA treatment records which indicated that the Veteran's self-reported seizures may be related to heart or psychiatric problems. The January 2012 examiner characterized the Veteran's in-service injury as a mild traumatic brain injury, and repeatedly stated that the Veteran had no current residuals other than a diminished sense of smell. In various sections of the report, the examiner stated: "no significant residuals at this time[,]" "no significant [symptoms]/complaints or impairments at this time[.]" "no clinically significant activity[.]" no "signs of epileptic seizures[,]" "no persuasive evidence" supporting the Veteran's self report of seizures, and that traumatic epilepsy was "clinically inactive at this time." In particular, the examiner found the Veteran's assertions regarding a seizure in June 2011, which allegedly led to the motor vehicle accident, to be "inadequate" evidence on which to diagnose an epileptic seizure. The January 2012 report also notes the Veteran's complaints regarding problems with executive functioning. The examiner similarly found the Veteran's self evaluation unpersuasive. The examiner found no evidence of impaired goal setting, planning, organizing, prioritizing, self monitoring, or problem solving, and expressly stated that the Veteran's cognitive system was normal and that, based on examination, "there is no persuasive evidence to support cognitive dysfunction due to TBI from service." The examiner described detailed testing of the Veteran's neurological and cognitive systems, and characterized the results of each as "unremarkable." The examiner found the Veteran with normal judgment, communication, consciousness, social interaction, orientation, motor activity, visual spatial orientation, and without relevant neurobehavioral effects. The examiner stated that the Veteran "does not have clinically significant findings of psychiatric disorder, neurobehavioral symptoms, headaches, dizziness, vertigo, hypersensitivity to light or sound, sleep disturbance, vision problems, cranial nerve dysfunction, hearing loss, tinnitus, speech or swallowing difficulties, bladder problems, bowel problems, erectile dysfunction, walking or mobility problems, balance problems, fatigue, malaise, autonomic dysfunction, or endocrine dysfunction. The examiner further noted that the Veteran attended college. The examiner indicated that the Veteran stated he had not attended school recently because he was incarcerated for repeatedly driving without a license, and for failing to pay fines related to traffic and speeding violations. The Veteran also denied any significant occupational impairments due to his TBI, and the examiner found that the Veteran's symptoms would not interfere with his ability to work. The examiner found that the Veteran's basic and instrumental daily activities were fully intact. The January 2012 examiner entered two significant findings - first, though no objective evidence supported his claims, the Veteran offered subjective evidence of impaired executive functioning such as mildly impaired memory, attention, and concentration; second, the examiner noted the residual of impaired sense of smell. With regard to the sense of smell, the Veteran indicated improvement in the past 2-3 years, and denied "any significant impairment" related to smell. As possible reasons to explain the Veteran's difficulties, the examiner noted the Veteran's "long standing predisposing history of cannabis dependency, suspected opioid abuse, and drug seeking behavior" in addition to the Veteran's diagnosed psychiatric disorders, which the examiner found "not clinically due to his TBI." The examiner noted positive marijuana tests in March 2011 and January 2012. The examiner further stated that emotional and behavioral features were due to the psychiatric disorders and that, from a clinical standpoint, these problems were not related to TBI. See Bloom, supra. Based on the evidence of record dated since November 2009, higher ratings are unwarranted for traumatic epilepsy and TBI. With regard to rating traumatic epilepsy under DC 8911, the evidence demonstrates that the Veteran has not experienced an epileptic seizure during the appeal period. Hence, a rating in excess of 10 percent is unwarranted under DC 8911. With regard to rating TBI under DC 8045, the evaluation assigned for cognitive impairment and other residuals of traumatic brain injury not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one disability evaluation is assigned for all the applicable facets. In this case, the overall evidence does not indicate that a rating in excess of 10 percent is warranted under DC 8045. A 10 percent rating has been assigned under the diagnostic criteria for the Veteran's subjective complaints of impairment of executive functioning. However, there is no objective evidence to support his assertions so a higher rating would be unwarranted for his claimed impairment. Further, a score of "0" is warranted for the other "facets of cognitive impairment" noted under the Code - the VA treatment records and extensive findings noted in the two VA compensation examination reports indicate normal judgment, appropriate social interaction, full orientation, intact motor, sensory, visual, and spatial systems, no neurobehavioral problems related to TBI, normal communication, and full consciousness; the record also establishes that the Veteran's employability has not been impaired by his TBI. Further, the medical evidence demonstrates that the Veteran has not been physically impaired by TBI, and that his diagnosed psychiatric problems are unrelated to his TBI. Moreover, the Veteran has been separately service connected with a noncompensable rating for his limited loss of sense of smell. Under DC 6275 of 38 C.F.R. § 4.87a, a sole 10 percent rating is authorized for complete loss of sense of smell. In assessing the claims in this matter, the Board has considered lay assertions of record from the Veteran. A layperson is competent to attest to symptoms he or she may observe or sense. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's statements regarding the nature of his disorders, and what he believes he is diagnosed with, are of limited probative value, and certainly do not preponderate against the VA examiners' clear opinions here. The disorders at issue involve internal pathologies of the brain which are beyond the capacity for lay observation. Their etiology and development cannot be determined through observation or by sensation such as feeling. The Veteran is simply not competent to render a medical opinion diagnosing his current problems as TBI-related, or to render a medical opinion linking his complaints to the roller skating accident he experienced in 1980. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). He does not have the training and expertise to so. On the essentially medical questions before the Board, the lay evidence is of limited evidentiary value. Extraschedular Rating The Board must still consider whether the Veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The disability at issue - TBI to include traumatic epilepsy - is specifically contemplated by the rating schedule as part of the General Formula. 38 C.F.R. § 4.124a. As detailed above, the Veteran did not manifest the symptomatology that would have warranted a higher schedular rating for residuals of the TBI. Rather, the schedular criteria directly address the disability he has experienced during the appeal period (i.e., diagnosed epilepsy and subjective complaints of impaired executive functioning). The schedular rating criteria reasonably describe his disability picture, therefore. Thun, 22 Vet. App. at 115. Even if the Board were to find that the schedular criteria did not reasonably describe the Veteran's disability picture, extraschedular referral would still be unwarranted. The evidence does not suggest, and the Veteran did not contend, that his TBI and residuals cause marked absence from work or result in hospitalizations. 38 C.F.R. § 3.321(b)(1); Johnson v. Shinseki, 26 Vet.App. 237, 247. The Veteran has not been hospitalized during the appeal period for his TBI or his traumatic epilepsy. As to employment, the evidence indicates that the Veteran's symptoms do not preclude him from employment. Thus, even if his disability picture were exceptional or unusual, referral for extraschedular evaluation would not be warranted. See Thun, supra. ORDER Entitlement to a rating in excess of 10 percent for service-connected traumatic epilepsy is denied. Entitlement to an initial rating in excess of 10 percent for service-connected traumatic brain injury is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs