Citation Nr: 1507453 Decision Date: 02/20/15 Archive Date: 02/26/15 DOCKET NO. 13-02 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether clear and unmistakable error exists in the rating decision dated January 10, 2008 regarding the denial of entitlement to service connection for right and left shoulder disorders. 2. Whether new and material evidence has been presented sufficient to reopen the claims for entitlement to service connection for right and left shoulder disorders. 3. Entitlement to service connection for right and left shoulder disorders. 4. Entitlement to service connection for skin cancer. 5. Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI) with residual migraine-type headaches. 6. Entitlement to a disability rating in excess of 10 percent for TBI with residual vertigo. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD M. R. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from April 2003 to April 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, determined that clear and unmistakable error did not exist in the rating decision dated January 10, 2008 that denied entitlement to service connection for right and left shoulder disorders, found that new and material evidence had not been presented sufficient to reopen the claims for entitlement to service connection for right and left shoulder disorders, denied entitlement to service connection for skin cancer, continued a 10 percent disability rating for TBI with residual vertigo, and assigned a disability rating of 10 percent for TBI with residual migraine-type headaches. As the Veteran has not expressed satisfaction with the higher rating for TBI with residual migraine-type headaches, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The Veteran's Virtual VA and VBMS files were reviewed in connection with this decision. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for right and left shoulder disorders and entitlement to service connection for skin cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The RO denied the Veteran's original claim of service connection for right and left shoulder disorders in a January 2008 rating decision; the Veteran did not file a timely appeal and no new and material evidence was received during the applicable appeal period. 2. The January 2008 rating decision was consistent with and reasonably supported by the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome regarding the claim of entitlement to service connection for right and left shoulder disorders. 3. Since the January 2008 rating decision, evidence has been received that is neither cumulative nor redundant of evidence of record at the time of the prior denial, that relates to unestablished facts necessary to substantiate the claims for entitlement to service connection for right and left shoulder disorders, and that raises a reasonable possibility of substantiating the claims. 4. The Veteran's headaches were not productive of characteristic prostrating attacks occurring on an average once a month over a period of several months at any time over the appeals period. 5. The Veteran's vertigo was manifested by occasional dizziness, but not by staggering at any time over the appeals period. CONCLUSION OF LAW 1. The January 2008 rating decision denying service connection for right and left shoulder disorders is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. The January 2008 rating decision was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1403 (2014). 3. Because evidence received since January 2008 is new and material, the claims for service connection for right and left shoulder disorders are reopened. 38 U.S.C.A. § 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.156 (2014). 4. The criteria for a disability rating in excess of 10 percent for TBI with residual migraine-type headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2014). 5. The criteria for a disability rating in excess of 10 percent for TBI with residual vertigo have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6204 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). With regard to the Veteran's claim of CUE in the prior rating decision, the Board finds that the VCAA is not applicable as a matter of law. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). In terms of the Veteran's petition to reopen the claims for entitlement to service connection for right and lefts shoulder disorders, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance 'if no reasonable possibility exists that such assistance would aid in substantiating the claim'); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision to reopen these claims, further assistance is unnecessary. Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A December 2010 letter to the Veteran informed him of what was needed to substantiate his claim, the information and evidence that the VA would collect, and the information and evidence that he would be responsible for providing to the VA. In addition, the letter met the notification requirements set out in Dingess, and the generic notification requirements still in effect under Vazquez. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service private and VA medical records and VA examination reports have been associated with the claims file. The Board has reviewed these records to establish if any other medical evidence relevant to the Veteran's claim exists and has determined that all relevant medical evidence has been associated with the record. The Veteran was provided with VA examinations in February 2011 and April 2014. The Board finds that these VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, and because the reports describe the disabilities in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. CUE Claim The Veteran contends that the January 2008 rating decision, which denied service connection for right and left shoulder disorders, contained CUE. In his claim, the Veteran indicated that there was CUE in the January 2008 rating decision since there was evidence in the record that, within one year of discharge, he had suspected rotator cuff tendonitis. He alleged that, because of the failure of the VA to rate his shoulder even at a noncompensable level, he was unable to get treatment, and his shoulder disorder had worsened. In his July 2011 notice of disagreement, the Veteran continued to contend that the VA was wrong in its decision, in that it failed to apply 38 C.F.R. § 4.40 and 4.59 to his claim. He argued that the criteria for painful motion, which was clearly listed in his examination, was not applied, and that this appeared to show that the VA overlooked the material facts of record, namely the examination and the VA's own laws and regulations. He contended that his arguments were not a disagreement as to how the facts were weighed or evaluated, but rather that the VA rater did not follow 38 CFR 4.40 and 4.59 regarding painful motion of a joint. In his VA Form 9, the Veteran noted that part of the reason his claim had been denied in the January 2008 rating decision was that he did not have a diagnosis of a shoulder disorder. He directed the Board's attention to the fact that in the statement of the case, which was issued in December 2012 it reflects that a VA MRI revealed a labral tear with an associated cyst. The Veteran contended that, just because VA did not do the proper exams to determine my condition does not mean that I did not have the labral tear. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo, supra. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. As for the pertinent laws and regulations governing claims for service connection in effect at the time of the April 1985 rating decision, under 38 U.S.C. §§ 310, 311 (now 38 U.S.C.A. §§ 1110, 1131) and 38 C.F.R. § 3.303, service connection could be granted for disability resulting from disease or injury incurred in or aggravated by service. The RO denied the claim in January 2008, noting that there was no in-service evidence of right or left shoulder disorders, and that there was no evidence of a current right or left shoulder disorder. In rendering this decision, the RO clearly relied on the Veteran's service treatment records, which did not reflect any evidence of a shoulder disorder. In addition, records from the VA hospital in Madison revealed limitation of motion of the Veteran's shoulders and suspected rotator cuff tendonitis within a few months of his discharge, and a VA examination provided in November 2007 reflected the examiner's opinion that the Veteran did not have a diagnosis of a shoulder disorder. Accordingly, based on the evidence of record, the Board is satisfied that the RO decision was a fair exercise in judgment. The Board agrees with the Veteran's that there was evidence of limitation of range of motion of his shoulder and a question of a diagnosis; however, the Veteran was subsequently provided with a VA examination, which determined that there was no diagnosis of a shoulder disorder. The Veteran noted the evidence in the record that reflects a labral tear in his left shoulder; however, this evidence was not part of the record at the time of the January 2008 rating decision. Based on the evidence at the time of the April 1985 rating decision, there was no CUE. Damrel, supra; Wilson v. West, 11 Vet. App. 383, 386 (1998) (a determination that there is CUE must be based on the record and law that existed at the time of the prior adjudication in question). The Veteran has essentially argued that the RO failed to detect his shoulder disability prior to the January 2008 decision, and that VA regulations were not appropriately applied. Such "(b)road-brush" allegations of "failure to follow the regulations" or "failure to give due process" are also insufficient to establish CUE. See Fugo, 6 Vet. App. at 44. In this vein, the Board also calls attention to Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002), in which the United States Court of Appeals for the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. The Court has held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes that the Veteran has argued that 38 C.F.R. § 4.40 and 4.59 were not applied. However, these regulations pertain to rating a disability after service connection has been established, and are therefore irrelevant to this claim. In light of the foregoing, the Board concludes that the correct facts, as known at the time, were before VA adjudicators at the time of the January 2008 rating decision with respect to the issue of service connection for right and left shoulder disabilities, and that the statutory and regulatory provisions extant at the time were correctly applied. The Board finds that there was no error which was undebatable and of the sort which, had it not been made would have manifestly changed the outcome at the time it was made. Consequently, the Board finds that the January 2008 rating decision did not contain clear and unmistakable error and, therefore, the appeal with respect to this matter must be denied. Claims to reopen In order to reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). '[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied.' Kent v. Nicholson, 20 Vet. App. 1, 10 (2006); see Bostain v. West, 11 Vet .App. 124, 127 (1998) (noting that the 'last final disallowance' of a claim was the denial of a request to reopen). The provisions of 38 C.F.R. § 3.156(a) define new evidence as evidence not previously submitted to agency decision makers and material evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). '[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence.' Rather, it is simply 'a component of the question of what is new and material evidence,' and should be informed by the question of whether the 'evidence could, if the claim were reopened, reasonably result in substantiation of the claim.' Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). New and material evidence is not required 'as to each previously unproven element of a claim.' Id. at 120. Thus, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See id. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the ' new and material' analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The RO denied the claim in January 2008, noting that there was no in-service evidence of right or left shoulder disorders, and that there was no evidence of a current right or left shoulder disorder. New and material evidence addressing this basis for denial is required to reopen the claim. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Since January 2008, substantial pertinent evidence has been added to the claims file, as follows. VA medical records, including an MRI in 2008 and treatment records in January 2011 and an April 2014 VA examination report show that the Veteran has current diagnoses of chronic bilateral shoulder impingement and left shoulder posterior labral tear with a paralabral cyst. The Board finds that this evidence is new because it was not before the adjudicator in January 2008. The Board also finds that the new evidence is material because, by providing current diagnoses of the Veteran's shoulders, it directly addresses one of the reasons the claim was previously denied in January 2008. This evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claims of service connection for right and left shoulder disorders. Hence, the appeal to this extent is allowed. Increased rating claims Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be 'staged.' Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased rating claims - TBI with residual headaches and with residual vertigo The Veteran is service-connected for TBI with residual vertigo under Diagnostic Codes 8045- 6204 and for TBI with residual migraine-type headaches under Diagnostic Code 8045-8100, both at 10 percent disability ratings. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. This hyphenated diagnostic codes may be read to indicate that a TBI is the service-connected disorder, and it is rated based on the criteria governing Migraine headaches (Diagnostic Code 8100) and vertigo (Diagnostic Code 6204), as a headache disorder and vertigo have been found to be the sole residuals of the Veteran's in-service TBI. Diagnostic Code 6204 provides ratings based on peripheral vestibular disorders. A 10 percent rating is assigned for peripheral vestibular disorder manifested by occasional dizziness. A maximum 30 percent rating is assigned for peripheral vestibular disorder manifested by dizziness and occasional staggering. A Note to Diagnostic Code 6204 provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this Diagnostic Code. This Note also provides that hearing impairment or suppuration shall be rated separately and combined. See 38 C.F.R. § 4.87, Diagnostic Code 6204 (2014). Diagnostic Code 8100 provides the criteria for migraine headaches. A 10 percent rating is provided for headaches with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is provided for headaches with characteristic prostrating attacks occurring on an average once a month over last several months; and a 50 percent rating is provided for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Diagnostic Code 8045, pertaining to the criteria for rating residuals of TBI, states that there are three main areas of dysfunction that may result from TBIs 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2014). 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 TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a 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. 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. Diagnostic Code 8045 stipulates that the preceding list of types of physical dysfunction does not encompass all possible residuals of a 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. Diagnostic Code 8045 also stipulates that the need for special monthly compensation (SMC) 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., must be considered. Diagnostic Code 8045 also states that the table titled 'Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified' contains 10 important facets of a 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, 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. A 100-percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The regulation provides the following example: assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. There are five notes that accompany Diagnostic Code 8045. Only the first four are pertinent to the claim currently before the Board. 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" 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. Background The Veteran underwent a VA examination in February 2011. The examiner opined that, as a result of his in-service TBI, the Veteran had subsequent residual migraine-type headaches and vertigo. These disabilities had a mild disruptive interference with daily activities. The Veteran reported that his headaches occurred most days of the week, and he often woke up with them. They lasted all day and were associated with photo- and phonophobia as well as mild nausea. Once or twice a week, his headaches were at their worst, and he wanted to sit in a quiet, dark room. He was able to work through his headaches. The Veteran reported that he had daily vertigo which lasts for 15-30 seconds. He felt as though it had been getting worse over time and lasting longer. The Veteran reported subjective memory symptoms; however, the examiner opined that these were not likely related to his TBl and are more likely related to poor attention due to his anxiety disorder. The Veteran was provided with a VA examination in April 2014. The examiner found that the only residuals of the Veteran's in-service head injury were headaches and vertigo. The Veteran reported that his headaches lasted less than a day, and occurred about three to four times per week. He had missed part of a day of work due to headache once over the last few years, although his ability to work was mildly impaired by his headaches. The Veteran experienced nausea, sensitivity to light and sound, and changes in vision, such as scotoma, flashes of light, and tunnel vision. The examiner found that the Veteran did not have prostrating attacks of headaches. With regard to his vertigo, he described his disequilibrium as episodes of visual disruption. They appeared as a shaking in the horizontal plane most often, but occurred in different directions as well. They lasted seconds in length, with the longest episode lasting 40 seconds by his count. They occurred multiple times per week, although not necessarily every day. At time, he had more than one episode in a day. He had not fallen or stumbled. Rating - headaches The Veteran contends that his headaches should be considered prostrating. He has asserted that, when he can, he goes into a dark quiet room; however, while he is at work, this is not possible. He argues that, just because he is able to get up and carry on, does not mean that they were not prostrating. The Board finds that, based on the evidence of record, the Veteran's headaches do not warrant a higher evaluation. In order to warrant a higher disability rating, the evidence would need to reflect that the Veteran's headaches have been productive of characteristic prostrating attacks occurring on an average once a month over last several months. The rating criteria do not define "prostrating," and neither has the Court of Appeals for Veterans' Claims. By way of reference, the Board notes that "prostration" is defined as "utter physical exhaustion or helplessness" in Webster's New World Dictionary of American English, Third College Edition (1986), see p. 1080, and as "extreme exhaustion or powerlessness" in Dorland's Illustrated Medical Dictionary. See 1367 (28th Ed. 1994). While the Veteran has contended that he has headaches that cause him to want to retreat to a dark room, the evidence shows that he is able to work through his headaches, and that he has only lost part of one day of work due to his headaches. For the most part, he was able to continue to function through his headaches, even at their worst. Significantly, the VA examiner who provided the April 2014 examination found that the Veteran did not have prostrating episodes associated with his headaches. As such, the Board finds that, while his headaches are difficult, they do not render him powerless to function. Therefore, the Veteran does not meet the criteria for a higher disability rating for his headaches under Diagnostic Code 8100. The Board has considered rating the Veteran's headaches under other Diagnostic Code in order to provide him with the highest rating. However, as the rating criteria under Diagnostic Code 8100 pertain directly to headaches, this is the most appropriate Diagnostic Code to rate the Veteran's headaches. The Board will consider rating the Veteran's headaches and vertigo under Diagnostic Code 8045, pertaining to the effects of residuals of TBI, below. Rating - vertigo The Veteran has contended that his rating should be higher for vertigo. He argued that he did not stagger, as he stopped moving once he felt dizzy. He also indicated that he felt his symptoms would warrant a higher disability rating under Diagnostic Code 6205. The Board finds that the Veteran's service-connected vertigo does not warrant a higher disability rating. The disability is currently rated at 10 percent, pertaining to occasional dizziness. A higher rating is assigned for by dizziness and occasional staggering. The Board finds that the Veteran's disability picture is accurately represented by the criteria for a 10 percent disability rating. The Veteran has reported episodes of dizziness lasting less than one minute, and that these episodes usually did not occur every day. The Board finds that this represents, at most, occasional dizziness. He has not reported staggering or any falls due to his dizziness. As such, the Board finds that, while he has reported daily vertigo, these episodes were exceedingly brief, and did not occur every day. The Board concludes that his disability would be considered to be commensurate with occasional dizziness and does not warrant a higher disability rating under Diagnostic Code 6204. The Board has considered rating the Veteran's vertigo under other Diagnostic Codes in order to provide him with the most beneficial rating. The Veteran has contended that his vertigo warrants a higher disability rating under Diagnostic Code 6205. As such, the Board has, in particular, considered a rating under Diagnostic Code 6205, pertaining to Meniere's syndrome, which provides a 30 percent rating for hearing impairment with vertigo less than once a month, with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205. However, the Veteran has not been diagnosed with Meniere's disease. In addition, as the Veteran has been denied entitlement to service connection for hearing loss, the Board finds that this rating would be inappropriate. There are no other Diagnostic Codes that address the Veteran's vertigo that provide a higher disability rating. Rating under criteria for TBI The Board has considered whether rating the Veteran's headaches and vertigo, which have been found to be his only residuals of TBI, under Diagnostic Code 8045 would provide him with a higher disability rating. Under Diagnostic Code , the Veteran's headaches and vertigo would be rated under the subjective facet of the table entitled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. However, under this criteria, a compensable rating is only warranted when there are three or more subjective symptoms interfering with instrumental activities of daily living, work, family, or other close relationships. In this case, the evidence is clear that the Veteran only had two subjective residuals of his TBI-headaches and vertigo. As such, a higher rating under Diagnostic Code 8045 is not warranted. As the preponderance of the evidence is against the claims of increased ratings for headaches and vertigo, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds that neither the first nor second Thun element is satisfied here. The Veteran's service-connected migraine-type headaches and vertigo, as residuals of TBI, are manifested by signs and symptoms contemplated by the rating schedule. Diagnostic Code 8100 pertains to headaches, and contemplates varying degrees of severity, and Diagnostic Code 6204 considers dizziness. In short, there is nothing exceptional or unusual about the Veteran's migraine-type headaches and vertigo disabilities because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet.App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his migraine-type headaches or vertigo have result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014)., a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. TDIU Considerations The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2014). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. The Veteran has reported on several occasions that he works full time. Accordingly, the question of entitlement to TDIU has not been raised. ORDER The January 2008 rating decision that denied service connection for a right and left disorders was not clearly and unmistakably erroneous, and the appeal is denied. As new and material evidence has been received to reopen the claim of service connection for right and left shoulder disorders; the appeals to this extent is allowed. A disability rating in excess of 10 percent for TBI with residual migraine-type headaches is denied. A disability rating in excess of 10 percent for TBI with residual vertigo is denied. REMAND When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the Veteran was provided with a VA examination to determine whether he had right or left shoulder disabilities in April 2014. An addendum opinion was provided that same month. The examiner opined that the Veteran's chronic bilateral shoulder impingement with left shoulder posterior labral tear with paralabral cyst were not likely caused by his service experience and duties. The Veteran had no record of being seen for a shoulder condition while in the service and only recently has he been seen for this. The examiner noted that service treatment records reflected that he denied any joint complaints near separation in January and February 2007. He opined that his shoulder disorders were more likely related to his deconditioning and his current activity level. A clarification was requested in that same month; however, the opinion in the record that is apparently in response to this request is identical to the one previously provided. The Board finds that this opinion is in adequate for the following reasons. The examiner appeared to base his opinion at least in part on the fact that the Veteran did not report any pain in his shoulders in May 2007, only limitation of motion. However, the record reflects the Veteran's reports of shoulder pain with motion. As such, an addendum opinion should be requested from an examiner other than the examiner who provided the April 2014 examination and addendum opinion, to provide an opinion as to whether the Veteran's right or left shoulder disorders are related to service, that addresses the complaints of shoulder pain in May 2007. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. The Veteran has contended that he began to have symptoms of skin cancer while on active duty. While service treatment records do not reflect any diagnosis of or treatment for a skin disorder, a December 2010 VA medical record shows that the Veteran was seen for dermatologic consultation regarding a skin lesion on the left side of his chest. The Veteran indicated that it had been present for three years. The Veteran was diagnosed with a basal cell carcinoma on his chest and underwent excision. The Veteran is competent to provide statements that this skin lesion had been present for three years. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the competent evidence shows that the Veteran's skin cancer may have manifested, as shown by a lesion on his chest, shortly after his discharge from active duty, the Veteran should be provided with a VA examination to obtain an opinion as to whether his basal cell carcinoma manifested during active duty or within a year of discharge. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his right and left shoulder disorders. All indicated tests and studies should be conducted. The claims file (including paper records and/or records in the Virtual VA and VBMS systems) and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right or left shoulder disorders were caused by or are etiologically related to any incident of active duty. The examiner should address the Veteran's contentions that his shoulder pain began during service, and the VA medical records showing treatment for limitation of motion and shoulder pain in May 2007, within a few months of his discharge. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for right and left shoulder disorders in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 2. Schedule the Veteran for a VA examination to determine the etiology of skin cancer (basal cell carcinoma). All indicated tests and studies should be conducted. The claims file (including paper records and/or records in the Virtual VA and VBMS systems) and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's skin cancer (basal cell carcinoma) had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service. The examiner must address the Veteran's contention in a December 2010 VA medical record that he had the lesion on his chest for three years, which would mean its onset was within a year of active duty. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for skin cancer in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs