Citation Nr: 1524778 Decision Date: 06/10/15 Archive Date: 06/19/15 DOCKET NO. 12-22 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent prior to September 14, 2012 for traumatic brain injury (TBI) with post traumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 50 percent for post traumatic tension headaches with intermittent migraine headaches to include entitlement to an extraschedular adjudication pursuant to 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from February 2007 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which granted service connection for PTSD, 30 percent effective from June 11, 2010; traumatic brain injury, 10 percent effective from June 11, 2010; and post traumatic headaches, 10 percent from June 11, 2010. In June 2014 during the course of this appeal, the RO assigned a 50 percent rating for traumatic brain disorder with PTSD effective from June 11, 2010, and a 100 percent rating from September 14, 2012. The RO explained in the June 2014 Supplemental Statement of the Case that, although PTSD and TBI had been separately rated, the medical evidence of record clearly reflects that the symptoms of these two disabilities may not be distinguished from one another. The RO separately awarded a 50 percent evaluation for post traumatic headaches from June 11, 2010. The awards of a 100 percent disability for traumatic brain disorder with PTSD from September 14, 2012 is considered a full grant of the benefits sought in regard to this issue as it is the maximum schedular evaluation available and, therefore, there remains no controversy as to the schedular evaluations in this matter for those periods for the Board's consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In contrast, the award of a 50 percent evaluation prior to September 14, 2012 by the RO is not considered a full grant of the benefit sought for the period prior to September 14, 2012 in this matter and, therefore, the Board retains jurisdiction in the matter. Cf. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Board notes that the Veteran's representative, while acknowledging that the RO granted the maximum schedular evaluation under Diagnostic Code 8100 for migraine headache, has raised the matter of entitlement to an extraschedular evaluation based on "severe economic deprivation." See DAV "Appeal Brief" (April 2015). This matter is raised as part of the appeal of the claim for a higher rating for headaches and, therefore, the Board has added this matter to the issues on appeal. In September 2012, the Veteran testified before a Decision Review Officer at the RO. A hearing transcript is of record. In August 2012, the Veteran requested a videoconference hearing before the Board. A hearing was scheduled and the Veteran failed to appear for that hearing date. Neither the Veteran nor his representative has indicated good cause for the failure to report for that hearing or a desire to have another hearing scheduled; therefore, the hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.702(d). The Board notes that the Veteran's claims have been reviewed using the Veterans Benefits Management System (VBMS), VA's electronic system for document record keeping, and relevant documents contained therein are part of the Veteran's electronic claims file. The Court of Appeals for Veterans Claims (Court) has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, a TDIU effective September 12, 2012 was granted in a June 2013 rating decision. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (distinguishing Rice). The record does not reflect that the Veteran filed a disagreement with the effective date assigned in this decision. As such, the Veteran's entitlement to a TDIU for the period prior to September 14, 2012, need not be addressed further by the Board in this decision. FINDINGS OF FACT 1. Prior to September 14, 2012, the evidence does not more nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to traumatic brain disorder with PTSD; for the period prior to September 14, 2012. 2. The Veteran's PTSD does not present an exceptional or unusual disability picture to render impractical the schedular rating criteria. 3. The Veteran's post traumatic tension headaches with intermittent migraine headaches do not present an exceptional or unusual disability picture to render impractical the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of in excess of 50 percent for TBI with PTSD prior to September 14, 2012 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b), 4.7, 4.124a, 4.130, Diagnostic Codes 8045, 9411 (2014). 2. The criteria for an initial evaluation of in excess of 50 percent for posttraumatic tension headaches with intermittent migraine headaches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b), 4.7, 4.124a Diagnostic Code 8100. 3. The criteria for referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for adjudication of extraschedular ratings are not met. 38 C.F.R. § 3.321(b) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA met its duty to notify. VA sent to the Veteran all required notice in August and September 2010 letters, prior to the rating decision on appeal. This appeal arises from the Veteran's disagreement with the initial disability evaluation assigned following the grant of service connection. In cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also met its duty to assist the Veteran. VA obtained the all relevant medical treatment records identified by the Veteran. These records have been associated with the claims file. VA inquired about the existence of Social Security Administration (SSA) disability records, and determined that there were no SSA records. VA further afforded the Veteran appropriate VA medical examinations, which are adequate. The Board finds that the VA examination reports described the disabilities in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. I. Evaluations The Veteran seeks an evaluation in excess of 50 percent prior to September 14, 2012 for traumatic brain disorder with PTSD. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). General Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Rating Criteria Specific to TBI and PTSD 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. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of traumatic brain injury are evaluated, 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 Traumatic Brain Injury Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" table. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. The need for special monthly compensation 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. should also be considered. Id. Under Diagnostic Code 8045, the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of 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, labeled "total." A 100 percent evaluation will be assigned it "total" is the level of evaluation for one or more facets. If no facet is evaluated at "total," the overall evaluation is based on the level of the highest facet as follows: 0 = 0 percent; 1=10 percent; 2=40 percent; and 3=70 percent. However, not every facet has every level of severity. The "subjective symptoms" facet, for example, provides for an impairment level of 0, 2, or 2, which corresponds to 0 percent; 10 percent; and 40 percent, respectively. Notes are included with Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of Traumatic Brain Injury Not Otherwise Classified" with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. Emphasis added. 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. Here, the Veteran has been separately evaluated for residuals of TBI resulting in symptoms of PTSD and post traumatic headaches. The RO assigned a maximum schedular evaluation for post traumatic headaches from June 11, 2010 (date of claim) and for PTSD from September 14, 2012. The issue before the Board is whether an evaluation is excess of 50 percent prior to September 14, 2012 is warranted for TBI with PTSD. TBI with PTSD is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides for a 50 percent evaluation 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is indicated where 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 of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The psychiatric symptoms listed in the rating criteria below are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Factual Background Report of VA examination dated in August 2010 reflects a history of head injury due to an IED (improvised explosive device) blast to his vehicle in November 2008. It was noted that PTSD would be evaluated by the mental health clinic. Specific subjective symptoms included headaches, dizziness, sleep disturbance, malaise at times, moderate memory impairment, decreased attention, difficulty concentrating, difficulty with executive functions, psychiatric symptoms (mood swings, anxiety, depression), sensory changes of left hand when sleeps in certain positions, sound and light sensitivity with migraines, neurobehavioral symptoms (irritability, restlessness), and unemployment. It was noted that the Veteran attended school online because he would have trouble sitting in a classroom, and that he drifts off daily thinking about "what happened in Iraq." The examiner determined that there was no objective evidence on testing of memory, attention, concentration, or executive function impairment; judgement was normal; social interaction was occasionally inappropriate; the Veteran was oriented to person, time, place and situation; motor activity was normal; and visual spatial orientation was normal. The examiner found that there were 3 or more subjective symptoms that mildly interfere with work-intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hyper-sensitivity to sound, and hyper-sensitivity to light. No impairment in the Veteran's activities of daily living (ADLs) was found. The diagnosis was mild TBI with post traumatic headaches, resembling chronic tension headaches, and intermittent migraine causing moderate functional impairment, along with TMJ, tinnitus, and symptoms of PTSD with decreased memory and concentration to be evaluated by neuropsychiatry. The examiner noted that the Veteran had moderate functional impairment as a result of subjective complaints. Report of VA PTSD examination dated in September 2010 reflects complaints that "I can't sleep, and I avoid situations that remind me of Iraq. I'm irritable and anxious. I trust no one. No one can be trusted. I can't get habits of protecting myself that I used in Iraq out of my mind and out of my behaviors." The Veteran sobbed and stated "I can't talk about what happened. I just can't. I can't do this interview." The Veteran reported that he had a long-distance relationship with a woman in New Jersey, and a desire in being with family members, but difficulty meeting new people and making new friends. The examiner noted that the Veteran's psychological state did not impact his ability to perform ADLs. The Veteran reported that he was attending St. Joseph's University, taking 2 classes in the criminal justice program and that he was investigating volunteering on an emergency medical unit in his town. Mental status evaluation showed that the Veteran presented on time for his appointment, ambulated independently, dressed casually, and was appropriately groomed. He was alert, cooperative, and fully oriented in all spheres, with no speech impairment (clear, normal volume, articulate), and fair eye contact. There was no impairment of thought processes or content. He denied suicidal ideation. Affect was blunted and the Veteran cried at appropriate times during the interview (i.e., discussing trauma). Testing suggested severe symptoms of depression, sadness, guilty feelings, self-dislike, self-criticalness, and concentration difficulties. There were moderate symptoms of loss of pleasure, agitation, indecisiveness, loss of energy, changes in sleeping pattern (less), and irritability. There were mild symptoms of pessimism, past failure, crying, loss of interest, and fatigue. Additional testing suggested severe anxiety symptoms, nervousness, numbness or tingling, inability to relax, and heart pounding or racing; also there were moderate symptoms of feeling hot, fear of the worst happening, dizziness, hands trembling, shaky, scared, sweating (not due to heat), and indigestion. The diagnosis was PTSD and a Global Assessment of Functioning (GAF) score of 53 was assigned based on "generally severe frequency and intensity of symptoms associated with severe reduction of social functioning." The examiner noted that the Veteran "is presently attending school part-time (on-line because PTSD symptoms prohibit him from attending in a classroom setting at this time) and is investigating volunteer work. The examiner stated that: The Veteran's present mental health symptoms would likely cause severe discomfort when interacting with other people and moderate reduction in communication effectiveness. The amount of avoidance of social contact and confrontation would likely interfere severely with his ability to interact effectively. His ability to maintain a logical thinking process appears adequate and would not likely impact his social or vocational functioning. Veteran does not suffer from gross impairment in thought processes delusions or hallucinations. He is not a danger to himself or others. VA outpatient treatment notes dated August to November 2010 reflect that the Veteran underwent VA individual therapy for mental health problems. At his August 2010 visit, the examiner wrote that the "Veteran reported that he continues to drift in and out when re-experiencing, and did so during the session while discussing guilt. He further wrote that the "Veteran stated that he wants to focus on treatment so that he can proceed in his career, and his symptoms and concerns were normalized." At his September 2010 visit, the Veteran reported continued difficulty with headaches and schoolwork. Objectively, at all sessions, the Veteran was oriented to time place, person, and purpose. His mood was depressed, and his affect was consistent with mood. Speech/language and thought processes/concentration were within normal limits. There was no evidence of suicidal/homicidal thoughts or hallucinations/delusions. A December 2010 letter from a VA clinical psychologist at the Veteran's request reflects that the Veteran has" difficulty concentrating and this impairs his ability to complete tasks," and the clinician stated that "It is likely that [redacted Veteran's name] could benefit from reasonable accommodations to allow him to complete his work." In this regard, the Board observes that the Veteran submitted numerous email correspondences with his college instructors reflecting that he needed additional time to complete work, that he had failed to submit work timely, and that he was having difficulty completing tasks due to disability that included frequent debilitating headaches and PTSD problems. A March 2011 letter from the Veteran's ex-girlfriend (E.B.) reflects that she dated the Veteran beginning in 2010 and broke it off soon after. She observed that he behaved angrily and disturbingly when hearing new on the Iraq war, had a hyper-startle response, had disturbed sleep (i.e., nightmares), and drove erratically. In August 2011, the Veteran reported as follows: The fact that I was only deemed 30% disabled when it came to PTSD really felt like a slap to my face. I went through a horrific experience and I have gone out of my way to seek help on my own without ever being told to. I could have made up claims to be having suicidal thoughts or simply recited textbook definitions. Instead, I have been nothing but sincere in talking about my problems and my desire to try to get help for them. Since I've come home and had to deal with my issues, my relationship with my parents has been effected, my relationship with my girlfriend (ex) was effected and eventually failed in large due to my issues. I've had to withdraw from 4 college classes....., and I've had to live day to day with my problems-as well as trying to hide them from the world out of embarrassment. He reported that he could not handle his VA mental health counselling and stated that: I couldn't handle it: I isolated myself in my room away from my parents. I ended up ruining my relationship with my girlfriend at the time I stayed up late at night and then would wake up late and then never want to get out of bed. I couldn't exercise from other physical injuries and was just completely depressed. He further reported that: Today I still cannot drive over pot holes or man holes in the road -I swerve the car all the time. I'm constantly on guard from anything (situations, not just people) and get irritable at times when I forget simple things such as walking out of my hotel room into the hallway and having no idea where I am. I am consistently punching the wrong pin number on my debit card -locking myself out from getting cash for a few days before I can go into the bank and get the pin reset. I lose my Bluetooth at least 3-4 times a day and now it's finally gone forever. I lose my wallet, keys and cell phone at least once a day. I have to write everything down or I won't remember and it's embarrassing. A September 2011 mental health progress note reflects individual therapy. The Veteran complained of low motivation and worsened sleep. Objectively, Veteran was oriented to time place person and purpose. Mood was depressed, affect was consistent with mood. Speech/language and thought processes/concentration were within normal limits. There was no evidence of suicidal/homicidal ideation or hallucinations/delusions. An October 2011 VA outpatient neurology record reflects that the Veteran was awake, alert, oriented, fluent, and consolidates information well. The record further reflects that the Veteran had "mild TBI" and was "taking several narcotic medication (abuse vs. dependence)." It was noted that the medication for migraine control "also improved his mood" and that he had moderate to severe PTSD. An August 2012 letter from a VA nurse (F.F.) on behalf of the Veteran reflects that he has "challenges with executive functioning" that include "disorganization, concentration difficulties, memory recall difficulties, [and] paying attention to detail." She noted that "These symptoms that are related to TBI, PTSD, and ADHD." A September 2012 statement from the Veteran's girlfriend reflects that they had been together for the past 2 years and that they lived together for over a year. She noticed that he has sleep difficulties; he stays up all night watching TV or reading material about the war in Iraq. She noted that he will text with an old service buddy in the middle of the night about Iraq. She noticed that he had difficulty remembering simple things (i.e., paying the rent/student loan on time, losing a money order, keeping track of car keys); that he has "insane road rage;" episodes of "deep dark depression;" that he has "constant acts of losing control and horrible judgement;" behavioral oddities (i.e., turns very quiet, stops eating correctly, stares endlessly at the floor, stay up all night); overreacts to perceived threats; and episodes of isolation. She reported that the Veteran had been unable to complete an internship with the State Police, was dismissed from a volunteer position with the town's emergency management, has been "nearly kicked out of college three different times," and cannot find a job. See VA Form 21-4138 (September 2012). In September 2012, the Veteran testified that his symptoms included anger problems, little to no social interaction apart from his girlfriend, poor memory problems and concentration, hallucinations, unemployment, and significant difficulty with school. Analysis Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent prior to September 14, 2012 for TBI with PTSD. Because the evidence shows that the symptoms of TBI and a mental disorder cannot be "clearly separated," a single evaluation must be assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. As noted above, under Diagnostic Code 8045, emotional/behavioral dysfunction resulting from traumatic brain injury is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. Here, the Veteran has clearly has a diagnosed mental disorder: PTSD. For the period prior to September 14, 2012, neither the Veteran's complaints nor the medical evidence more nearly reflect occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to his PTSD symptoms. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The evidence shows severe symptoms of anxiety, depression, sadness, guilty feelings, self-dislike, self-criticalness, and concentration difficulties along with moderate symptoms of loss of pleasure, agitation, indecisiveness, loss of energy, sleep disturbance, and irritability. However, the evidence shows that his symptoms did not interfere with routine activities. He attended an online college, had girlfriends, wanted to be with family, did not neglect his personal appearance-he was appropriately groomed and attired at his VA examination. The evidence shows that the Veteran was not suicidal and that there any disturbances of mood or motivation did not affect his ability to function independently and appropriately. Although the Veteran struggled with completing his school work, the record shows that he engaged in correspondence with his instructors on this and made attempts to resolve his academic problems with the instructors and school. While the Veteran reported symptoms of avoidance, he was able to leave home and interact with others. He had no suicidal thoughts although he was noted to be profoundly sad on VA examination when attempting to discuss his Iraq experiences. While the Veteran had severe anxiety symptoms, this was not near-continuous and appropriate to his circumstances insofar as he was late on school assignments and unemployed. While the Veteran had self-described irritability and "road rage" per his girlfriend, there is no indication that he had unprovoked periods of violence. Neither the Veteran nor his providers have indicated that he has had physical altercations or caused property damage due to the severity of his symptoms. Also, the record shows no impairment in the Veteran's ability to perform ADLs. The September 2010 report of VA examination shows that the Veteran dressed casually and was appropriately groomed. This and other mental status notes consistently show that he was alert, cooperative, and fully oriented in all spheres, with no speech impairment or thought processes/content. A September 2010 a GAF score of 53 was assigned based on "generally severe frequency and intensity of symptoms associated with severe reduction of social functioning." A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). VAOPGCPREC 10-95. The evidence shows difficulty in adapting to stressful circumstances. Neither the lay nor the medical evidence shows symptoms such 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; or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. Weighing the evidence of record, the Board finds that the Veteran's TBI with PTSD symptomatology more closely approximates the schedular criteria for a 50 percent rating prior to September 14, 2012 under Diagnostic Code 9411. The 50 percent disability criteria acknowledge the significant difficulties as described by the Veteran with his school functioning and relationships due his PTSD symptoms. The frequency and severity of his symptoms do not more nearly reflect the criteria for a higher evaluation based on the schedule for rating mental disorders. Having determined that the criteria for a higher evaluation based on emotional/behavioral dysfunction, the Board will now the Board will consider whether separate evaluations are warranted for any manifestations or symptomology of TBI that are not contemplated by the schedule for rating mental disorder. In this regard, the Board notes that the schedule for rating mental disabilities contemplates emotional/behavior dysfunction, such as impairment in memory, attention, concentration, executive functions, judgment, social interaction, and orientation. Likewise, the schedule for rating mental disorder contemplates impairment in communication (e.g., criteria for 100 percent contemplate symptoms of gross impairment in thought process or communication). All of the Veteran's emotional and behavior dysfunction has been attributed to either the Veteran's TBI or his PTSD and has been considered in the preceding analysis of whether a higher evaluation is warranted based on the schedule for rating mental disorders. The Board has attributed all potentially service-connected symptoms to his service-connected TBI and PTSD in determining that an evaluation in excess of 50 percent is not warranted. With regard to physical dysfunction, the Board notes that he Veteran has already been assigned a separate 50 percent evaluation for his headaches. Entitlement to a rating in excess of 50 percent is addressed below. Additionally, service connection has been awarded for tinnitus evaluated as 10 percent disabling. The rating for this disability has not been appealed, and is therefore not before the Board. There is no evidence that the Veteran had decreased motor activity with intact motor and sensory system or impaired visual spatial orientation as a result of his TBI prior to September 14, 2015. Likewise, the evidence does not show impairment a persistent altered state of consciousness as contemplated by "total" impairment under the facets for communication or consciousness. Weighing the evidence of record, the Board finds that the Veteran's TBI with PTSD symptomatology more closely approximates the scheduler criteria for a 50 percent rating prior to September 14, 2012. The 50 percent disability criteria acknowledge the significant difficulties as described by the Veteran with his school function and relations due to his emotional/behavioral impairment. The frequency and severity of his symptoms do not more nearly reflect the criteria for a higher evaluation. Furthermore, the Board concludes that a uniform 50 percent disability evaluation is warranted for the Veteran's TBI with PTSD for the period prior to September 14, 2012. The criteria for a higher evaluation are not met at any time prior to September 14, 2012. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007) (Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings"). II. Post Traumatic Headaches The Veteran seeks a higher rating for his headaches which is currently a 50 percent disability evaluation under Diagnostic Code 8100. The maximum schedular rating for this particular disability is 50 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As such, the Veteran has been assigned the maximum schedular rating available for his headaches for the entire appeal period. Id. As there is no legal basis upon which to award a higher schedular evaluation for headaches, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Extra-Schedular Consideration of PTSD and Post Traumatic Headaches The question of whether an extraschedular rating is warranted is a component of an increased rating claim. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996) (discussing 38 C.F.R. § 3.321(b)(1)). While the Board cannot assign an extraschedular rating in the first instance, it can specifically adjudicate whether to refer a case to the VA Director of Compensation and Pension Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In determining whether an extra-schedular evaluation should be considered, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun, 22 Vet. App. at 115. If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for an extra-schedular evaluation. Further, and according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Here, the schedular criteria for TBI, PTSD and headache are fully adequate. They address all of the Veteran's complaints of impairment due to anxiety, depression, and related mental health manifestations, as well as the headache pain and migraine symptoms. The symptoms presented by the Veteran do not present an exceptional or unusual disability picture. Also, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Accordingly, the Board finds that referral for extraschedular adjudication pursuant to 38 C.F.R. § 3.321(b)(1) of the Veteran's TBI with PTSD for the period prior to September 14, 2012 and for post traumatic headaches is not warranted. ORDER An evaluation in excess of 50 percent prior to September 14, 2012 for traumatic brain disorder with PTSD, but no greater, is denied. An evaluation in excess of 50 percent for post traumatic tension headaches with intermittent migraine headaches is denied. ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs