Citation Nr: 1751146 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-35 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to October 31, 2014. 2. Entitlement to an evaluation in excess of 10 percent for the service-connected residuals of a closed head injury, with headaches and dizziness prior to October 20, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and PB ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to September 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and September 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This case was most previously before the Board in April 2014. On remand, in a November 2014 rating decision, RO granted 70 percent evaluations for the Veteran's closed head injury and PTSD effective October 20, 2014, and October 31, 2015, respectively. In an April 2015 statement, the Veteran asserted that he was only appealing the effective dates assigned for those evaluations. Accordingly, the issues are as noted above. FINDINGS OF FACT 1. Prior to October 31, 2014, and resolving all doubt in favor of the Veteran, the Veteran's PTSD has been productive of occupational and social impairment with reduced reliability and productivity. 2. Prior to October 20, 2014, the Veteran's residuals of TBI have been manifested by objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no higher, for service-connected PTSD prior to October 31, 2014 are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for a rating of 40 percent, but no higher, for residuals of a closed head injury, with headaches and dizziness prior to October 20, 2014 are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045 (as in effect prior and since October 23, 2008), 8100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2013. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives, including those of April 2014. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duties to notify and assist are met, and the Board will address the merits of the claims. Laws and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2016). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2016). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. PTSD The Veteran's PTSD has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that diagnostic code, a 30 percent rating will be assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating for PTSD will be assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). At a September 2007 VA psychiatric examination, the Veteran complained of nightmares and having permanent images of decaying bodies. He had difficulty in sustaining sleep at night and would only sleep 2-3 hours. The Veteran indicated that he had no significant social life and could no longer participate in family events. He had not received psychotherapy for his mental condition within the prior year. He stated that he currently was working in law enforcement and had done so for five years. His relationship with his supervisor and co-workers was good and that he had lost no time from work. Examination revealed that appearance and behavior were appropriate and affect, mood, communication, speech, and concentration were within normal limits. Panic attacks were present and occurred once per week. There were signs of suspiciousness but no delusional history. Obsessional rituals were absent, thought processes were appropriate, and judgment was not impaired. Abstract thinking was normal and memory was within normal limits. Suicidal ideation and homicidal ideation were absent. There were no behavioral, cognitive, social, affective or somatic symptoms attributed to PTSD. The diagnosis was PTSD and the GAF was 70. It was noted that the Veteran did not have any mental difficulty performing activities of daily living but he did have difficulty establishing and maintaining effective work/school and social relationships. The Veteran had no difficulty understanding commands and posed no threat of persistent danger or injury to self or others. A January 2008 letter from a private counselor indicated that the Veteran would likely face problems dealing with his employment as a result of poor coping skills and aggressive manner. The counselor that the Veteran was not suicidal, but noted that he had no reserves to handle any distress or conflict and requested that a physician evaluate him for a medical leave of absence from his current job. At a February 2009 VA mental disorders examination the Veteran indicated that he was not involved in any sort of mental health treatment, including counseling or medication. The Veteran reported that he was experiencing nightmares on a nightly basis as well as panic attacks and anger control problems. He stated that he would be depressed because he would get left behind by his peers at work. He indicated sleep problems but denied having any suicidal or homicidal ideas. He had worked for six years at a federal prison and stated that he had confrontations with inmates and that these confrontations prevented him from being promoted. He believed that he got passed over because of his angry confrontations, including with staff. He stated that he had no real friends and had been married twice and divorced his first wife after one week. He was able to engage in a normal range and variety of average daily activities without interruption of his typical daily routine. He stated that his leisure activities included taking his wife out to eat and watching television. Examination revealed thought processes that were logical, coherent, and relevant. He was articulate, well dressed and well groomed. The Veteran was uncooperative and his social skills were poor. He seemed intelligent and his speech was well understood. His affect was one of irritation and excitation. His reasoning and fund of general information was good, with no psychomotor slowing or agitation. His verbal comprehension was fair to good, and his sensorium was clear. He indicated anxiety panic attacks, depression, insomnia, anhedonia and nightmares. He had procrastination and unfinished projects. He would get angry daily both at home and at work. He was distrustful of others when asked about paranoia but denied having any suicidal or homicidal ideas. It was noted that the Veteran had problem behaviors of aggressiveness and lack of cooperation. The main problems were noted as anger, irritability and poor interpersonal relationships. The diagnosis included PTSD, and the GAF was 65. At his November 2013 Board hearing the Veteran indicated that he had no social life as a result of his depression. He also was involved in several confrontations with coworkers. He would take offense when someone would question his job capability. He had been reprimanded several times. He had separated himself from his family and had not slept with his wife for about five years, which eventually led to divorce proceedings. He also indicated that he had a hard time dealing with his grandkids. He would often go to his job as a correctional officer and then come home and "lock myself up in my room." He had nightmares of seeing somebody's dressed in black standing over his bed. PB stated that she had been married to the Veteran for 25 years but would have to leave the house as the Veteran would yell and belittle her. The Veteran had never hit her but had punched and kicked walls. She had called the police due to domestic disputes about five or six times over the past 25 years. PB stated that the Veteran could not tolerate the grandkids and would leave the house when they came over. The Veteran stated that he did not want to take part in group therapy as felt others should not be listening to his problems. AT an October 2014 VA examination, the Veteran reported his wife was leaving him, but that he remained close to his stepdaughter. He reported still avoiding his nearby parents and family since he was teenager. He had no face to face friends, but chats with other veterans on Facebook. The examiner found the Veteran alert, oriented, highly verbal, and cohere with excellent verbal recall. He also reported continued reprimands at work and that he was no longer permitted to carry a weapon on the job. Testing suggested moderate to severe PTSD. The Board finds that the aforementioned lay and medical evidence reflects that the Veteran's symptoms warrant a rating of 50 percent for PTSD prior to October 31, 2014. The September 2007 VA examiner found the Veteran's symptoms resulted in difficulty establishing and maintaining relationships. The February 2009 VA examiner also noted poor interpersonal relationships. At the 2013 Board hearing, the Veteran reported confrontations with coworkers, that he was separate from his family, and that there were marital issues due to his anger problems. Although at the 2007 VA examination, the Veteran reported good relationships with coworkers and his supervisor, in January 2008 a private counselor was requesting he be evaluated for a leave of absence from work due to the Veteran's aggressive nature and lack of coping skills. Accordingly, and resolving all doubt in favor of the Veteran, the Board finds that the symptoms more nearly approximately occupational and social impairment with reduced reliability and productivity. This time period, however, does not warrant a 70 percent evaluation. Although the evidence shows difficulty with relationships, the evidence does not demonstrate an inability to establish and maintain effective relationships. The Veteran was still maintaining a relationship with PB, and attempts at full reconciliation were being made. Furthermore, he remained close with his stepdaughter. This tends to indicate difficulty, but not an inability to maintain relationships. Second, although there is deficiency in mood, there is no indication of an inability to function independently. The evidence of record does not demonstrate difficulty with speech or suicidal ideations. At no point was the Veteran disoriented or neglectful of appearance and hygiene. Third, the 2007 VA examination noted there was no impaired judgment. The Board also observes that the Veteran's GAF scores for this period were 65 and 70, which tend to reflect just mild difficulty in occupational and social functioning. For these reasons, a rating in excess of 50 percent for PTSD is not warranted. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TBI The Veteran seeks entitlement to an evaluation in excess of 10 percent for the residuals of a closed head injury, with headaches and dizziness, prior to October 20, 2014. In an effort to assist the Veteran in obtaining the most favorable evaluation, the Board will review the Veteran's TBI residuals under the provisions for both headaches and TBI residuals. Diagnostic Code 8100 provides for a 10 percent disability rating for migraine with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is provided for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent disability rating is provided for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. At his November 2013 Board hearing the Veteran indicated that he had headaches every day and that if he did not take his medications he would not make it through the day. The Veteran indicated that a physician had even written a letter to the DMV that resulted in the suspension of his driver's license due to his headaches. The Veteran indicated that his headaches would last for at least two hours and would incapacitate him. At an August 2005 VA brain and spinal cord examination the Veteran indicated that he had daily headaches that were 10/10. The diagnosis was chronic daily headache, "likely" tension headache. As for other medical records, a July 2008 VA neurological examination noted that the Veteran had weekly headaches that were mostly prostrating and would last about 30 minutes to an hour. A February 2009 VA (TBI) examination noted that the Veteran's headaches were constant, including when going to bed and when waking up. The headaches were noted as having a having a significant impact on his employment and also affected the daily actives of driving and grooming. A March 3, 2011 VA treatment record reveals that the Veteran presented for emergency treatment while indicating that his head was "about to explode." The Veteran was given Percocet and Clonidine and his pain eventually was reduced to 5/10. In the same manner, a March 7, 2011 private medical record indicates that the Veteran arrived at the emergency room at approximately 4:30 in the morning with complaints of an intense pounding in his head that resulted in crying and insomnia. The assessment was headaches and the Veteran was started on Topamax daily to prevent daily headaches. At a March 2012 VA headaches examination the Veteran indicated that he felt that his head was going to explode and that his medication offered some help but did not alleviate the pain. As for prostrating attacks, the Veteran reported less than one every two months. He had to use some sick leave from work due to his headaches. The Board finds that the Veteran has provided credible evidence that he has headaches which approximate those which are prostrating and occur more than once a month over the last several months. This conclusion is supported by multiple private and VA records and the Veteran's statements throughout the rating period on appeal. Under Diagnostic Code 8100, the level of disability described by the totality of the aforementioned evidence more nearly approximates a 30 percent rating. As the Veteran has been able to maintain his employment, albeit with some difficulty, and very frequent completely prostrating and prolonged headache attacks is not shown, the criteria for a 50 percent rating, migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability is not warranted. As a rating of 30 percent under Diagnostic Code 8100 has been found warranted, the Board will now determine whether a rating under Diagnostic Code 8045 would result in a higher rating. As for rating the TBI under the version of Diagnostic Code 8045 in effect prior to October 23, 2008, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, and others, following trauma to the brain, will be rated under the diagnostic codes specifically dealing with those disabilities. Otherwise, purely subjective complaints such as headache, dizziness, insomnia, and such, recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. That 10 percent rating will not be combined with any other disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). The medical evidence does not show, and the Veteran does not assert, that a diagnosis of multi-infarct dementia due to brain trauma, for which the Veteran would be eligible for a disability rating in excess of 10 percent under Diagnostic Code 9304, was present or has been present at any time during the course of the appeal. Therefore, a higher rating under Diagnostic Code 8045 as in effect prior to October 23, 2008, is not warranted. The regulations for rating traumatic brain injury (TBI) residuals were revised effective October 23, 2008. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from traumatic brain injuries 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 (2017). Here, in accordance with Diagnostic Code 8045, the Veteran has already been rated for PTSD under Diagnostic Code 9411. Additionally, the Veteran's optic neuritis is rated under Diagnostic Codes 6026-6070. Thus, as the emotional/behavioral and physical TBI residuals have been evaluated, the Board will address the cognitive functioning of the Veteran's TBI. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is "total," then the overall percentage evaluation is based on the highest facet. A 70 percent evaluation is assigned if "3" is the highest level of evaluation for any facet. If the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent. A 10 percent evaluation is warranted when the highest level of evaluation for any facet is "1." Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is "0." 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (1). 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (2). 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. 38 C.F.R. § 4.124a , Diagnostic Code 8045 Note (3). 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. 38 C.F.R. § 4.124a , Diagnostic Code 8045 Note (4). The table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired 0 May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a , Diagnostic Code 8045. At a December 2009 VA TBI examination the Veteran's memory, attention, concentration, executive functions were within the average to borderline range with greatest deficit in delayed memory. There was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions. Judgment was normal as was reasoning. Social interaction was occasionally inappropriate and impairing relationships including a previous arrest for disturbing the peace and discharging a weapon within city limits. He was always oriented to person, time, place, and situation and motor activity was slow due to motor imprecision. Visual spatial orientation was within normal limits, and his subjective symptoms did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. He had one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction. He was able to communicate and comprehend spoken and written language. His consciousness was normal. At a March 2012 VA TBI examination (and as modified by a July 2012 addendum) the Veteran was noted to have objective evidence on testing of mild impairment of memory, attention, concentration, normal judgment, social interaction that was routinely appropriate, always oriented to person, time, place, and situation, normal motor activity, normal visual space orientation, three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. He also had one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, communication that was occasionally impaired (due to slurred speech), and normal consciousness. Adjudicators are to assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," adjudicators are to assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 38 C.F.R. § 4.124a. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. In essence, the Board is considering the Veteran's headaches and dizziness under subjective symptoms in the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. At the TBI examinations of record (including December 2009 and March 2012) prior to October 20, 2014, all the cognitive impairment facets have been addressed. The Board notes that both VA examiners found that there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions. This is assigned a "2" which yields a 40 percent rating. Although memory was used in assigning the 70 percent evaluation for PTSD effective October 341, 2014, it was not noted in the rating decision continuing the 30 percent evaluation and thus it is not pyramiding to grant a 40 percent evaluation for this time period based on that symptom. No higher evaluation, however, is warranted, as no facet was assigned 3. As such, the Veteran's TBI residuals are more advantageously rated as a TBI, and such symptoms warrant a 40 percent rating. Conclusion The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit even more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating of 50 percent, but no higher, for PTSD prior to October 31, 2014 is granted, subject to the applicable law governing the award of monetary benefits. A rating of 40 percent for residuals of a closed head injury, with headaches and dizziness prior to October 20, 2014 is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs