Citation Nr: 18152296 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 13-05 368 DATE: November 21, 2018 ORDER Entitlement to serviced connection for a left-hand disability is denied. Entitlement to service connection for a right-hand disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for sinusitis is denied. Entitlement to service connection for a heart disability is denied. Entitlement to service connection for temporomandibular joint disorder (TMJ) is denied. Entitlement to an initial rating in excess of 30 percent for migraine headaches is denied. Entitlement to an initial rating in excess of 10 percent prior to May 6, 2017 for traumatic brain injury (TBI) is denied. Entitlement to an initial rating in excess of 10 percent prior to May 6, 2017 for a psychiatric disability is denied. Entitlement to a rating in excess of 50 percent as of May 6, 2017 for a psychiatric disability with TBI is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 6, 2017 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a left-hand disability due to a disease or injury in service, to include periods of active duty for training. 2. The preponderance of the evidence is against finding that the Veteran has a right-hand disability due to a disease or injury in service, to include periods of active duty for training. 3. The Veteran’s currently diagnosed tinnitus was as likely as not incurred during a period of active duty for training. 4. The preponderance of the evidence is against finding that the Veteran has a sinus disability due to a disease or injury in service, to include periods of active duty for training. 5. The preponderance of the evidence is against finding that the Veteran has a heart disability due to a disease or injury in service, to include periods of active duty for training. 6. The preponderance of the evidence is against finding that the Veteran has a TMJ due to a disease or injury in service, to include periods of active duty for training. 7. The Veteran’s migraine headaches have been manifested by symptoms most consistent with characteristic prostrating attacks averaging one in two months over last several months. Severe economic inadaptability has not been shown. 8. Prior to May 6, 2017, the Veteran residuals of TBI consisted of headaches, problems with memory, difficulty thinking, trouble concentrating, and being prone to short periods of spatial disassociation; there was no objective evidence of a TBI that was rated as “2” in one or more facet, or a TBI that was rated as “total” in one or more facet. 9. Prior to May 6, 2017, the Veteran’s psychiatric disability was not shown to have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, or worse. 10. As of May 6, 2017, the Veteran’s psychiatric disability with TBI was not shown to have caused either occupational and social impairment, with deficiencies in most areas or total social and occupational impairment. TBI were residuals were not rated as “3” in one or more facet, or rated as “total” in one or more facet. CONCLUSIONS OF LAW 1. The criteria for service connection for a left-hand disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a right-hand disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a sinus disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for TMJ are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for an initial rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 8. Prior to May 6, 2017, the criteria for a rating in excess of 10 percent TBI prior to May 6, 2017 have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, Diagnostic Codes 8045. 9. Prior to May 6, 2017, the criteria for an initial rating in excess of 10 percent prior for a psychiatric disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, Diagnostic Code 9413. 10. As of May 6, 2017, the criteria for a rating in excess of 50 percent for a psychiatric disability with TBI have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, Diagnostic Codes 9413, 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to July 1982. She also served in the National Guard. The Veteran testified before the undersigned Veteran’s Law Judge in March 2016. The Board notes that the Veteran submitted a response requesting a higher-level review under the Rapid Appeals Modernization Program (RAMP). However, the Veteran’s opt-in letter was received after the case had been activated at the Board, rendering the RAMP election no longer available under current VA policy. The Board notes that a decision was previously issued addressing the above matters in August 2016. However, the Veterans Law Judge who presided over the March 2016 hearing did not issue that decision and in October 2018 the decision was vacated. These decisions are now before the proper Veterans Law Judge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and includes any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). EVIDENCE A review of the Veteran’s service treatment reports reflects that she was treated for otitis externa of the right ear in September 1986. She was treated for sore throat complaints in October 1987 and was assessed with rule/out strep throat. In June 1990, the Veteran was noted to have no chronic problems. In August 1992, the Veteran was seen for right-sided hearing loss and nasal congestion. She was assessed with eustachian tube dysfunction and subjective hearing loss. In September 1992, the Veteran was assessed with frontal sinusitis. The Veteran was serving during a period of annual training and sustained a shock from a nearby lightning strike in August 1998. The Veteran did not report any complaints related to her lightning strike on a report of medical history form in November 1998. A March 1999 radiology report reveals that the Veteran slammed her right fifth digit in a car door. The report revealed a soft tissue injury to the right fifth finger with no fracture. An August 1999 computed tomography (CT) of the head noted a history of tinnitus of the right ear. A December 2000 magnetic resonance imaging (MRI) of the brain revealed right concha bullosa and prominence of the turbinates bilaterally but no evidence of accompanying ethmoid or maxillary sinus disease. A February 2001 medical records reflect that the Veteran reported having experienced headaches for two and a half years since a lightning strike. She was noted to have no other problems resulting from the lightning strike. Her ears were noted to be clear. In December 2001, the Veteran was seen for left thumb pain after cutting her finger. In September 2002, the Veteran was noted to have a history of possible recurrent sinus infections. A June 2005 report of medical examination revealed a normal clinical evaluation of the ears, sinuses, upper extremities, and heart. A January 2009 statement from Diagnostic Cardiology Associates reveals that the Veteran was diagnosed with premature ventricular contractions but her heart was structurally normal. At a May 2010 VA audiological examination, the Veteran reported constant bilateral tinnitus since a lightning strike in August 1998. The examiner opined that the Veteran’s tinnitus was less likely than not caused by any event or injury in service. The examiner’s rationale was that the Veteran’s hearing loss was within normal limits with no evidence of cochlear damage/dysfunction (normal otoacoustic emissions (OAEs)). The examiner indicated that it was possible that tinnitus was non-organic based on the Veteran’s unreliable speech scores. However, the examiner indicated that he could not determine the etiology of tinnitus without resort to mere speculation. At a May 2010 VA examination, the Veteran reported a bilateral hand condition due to a lightning strike, but denied any symptoms related to the hands. Following a VA examination, the examiner indicated that there was no objective evidence of a hand condition, and concluded that a precise diagnosis could not be rendered as there was no current objective evidence of pathology. At a May 2010 VA heart examination, the Veteran reported that she began suffering from heart palpitations in 2002 and was prescribed medication. She noted that the palpitations sometimes recur. Following a physical examination, the Veteran was assessed with cardiac arrhythmia of unknown type. The examiner indicated that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. The examiner indicated that it would only be with resort to mere speculation to opine whether the Veteran’s cardiac arrhythmia of unknown type was the result of a lightning strike in service. The examiner noted that although lightening does cause immediate cardiac arrhythmias and can cause heart damage, there is no current medical literature to support delayed cardiac events more than the first hours or few days. The Veteran’s service treatment reports do not document any cardiac symptoms, treatments, or diagnoses including arrhythmias following the August 1998 lightning strike. The Veteran’s November 1998 medical history form was negative for any heart symptoms or conditions and a June 2005 Reserve physical documented a normal physical examination with no report of heart symptoms reported by the Veteran. The examiner concluded that there was no current objective evidence that the Veteran’s current cardiac arrhythmia of unknown type could have been caused by or related to the lightning strike in service or the Veteran’s active service. At a May 2010 VA dental and oral examination, the Veteran denied any problems with her jaw movement. Her chief complaints were related to an avulsed restoration of the left maxilla unrelated to the claim for TMJ. The Veteran was noted to have a normal temporomandibular joint examination. The examiner reported that the Veteran verbalized no chief complaint regarding her temporomandibular joint spaces or any problems with chewing, talking, pain of the TMJ area, or tenderness of the muscles of mastication. The examiner concluded that the TMJ examination performed as well as the radiographs obtained was not consistent with any TMJ dysfunction. A private treatment report from Diagnostic Health, Orange Park dated in June 2010 reveals that a CT of the sinuses revealed no evidence of acute or chronic sinusitis. Post-service treatment reports from VA reflect that the Veteran reported a history of heart palpitations. A Holter monitor performed in 2009 revealed minimal supraventricular and ventricular ectopy. In September 2010, the Veteran reported bilateral tinnitus and heart palpitations. The Veteran reported bilateral tinnitus in December 2010. She was noted to have heart palpitations with a normal EKG. A February 2011 MRI of the brain included incidental evaluation of the sinuses and orbits which was normal. A November 2011 MRI of the brain revealed that the globes, paranasal sinuses, and mastoid air cells were within normal limits At a March 2016 video conference hearing, the Veteran testified that her hands had a tremor since the lightning strike in service. She indicated that her right hand was worse than her left hand. With regard to the claimed heart disability, the Veteran testified that she had not been diagnosed with a heart disability. She reported that she had heart palpitations. The Veteran’s representative indicated that she was diagnosed with arrhythmia by the VA examiner. With regard to tinnitus, she testified that after the lightning strike in service she began to have trouble with a zooming sound in her ears. With regard to the claimed jaw disability, the Veteran claimed that her jaw pops and she has discomfort in her jaw but she denied having been diagnosed with TMJ. With regard to sinusitis, the Veteran testified that she had been treated for mucus drainage in her nose but she reported that she has not been diagnosed with any sinus disability. 1. Entitlement to serviced connection for a left-hand disability 2. Entitlement to service connection for a right-hand disability With regard to the Veteran’s claim for a bilateral hand disability, the claims file is void of any evidence that the Veteran has been diagnosed with disability of either hand. The evidence of record reflects that the Veteran injured her right fifth digit when she slammed it in a car door in March 1999. However, the report revealed a soft tissue injury to the right fifth finger with no fracture. In December 2001, the Veteran was seen for left thumb pain after cutting her finger. When the Veteran was examined by VA in May 2010, the Veteran indicated that there were no symptoms related to her hands and the examiner indicated that there was no objective evidence of hand condition. Consequently, the evidence of record does not reveal a diagnosis of any bilateral hand disability. As a result, there is no evidence to establish the presence of a bilateral hand disability during the Veteran’s appeal. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 3. Entitlement to service connection for tinnitus The Veteran clearly has current tinnitus, as diagnosed in various medical records and during the May 2010 VA examination. She is competent to report current tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has credibly attributed tinnitus to the lightning strike during a period of active duty for training. Moreover, she has credibly reported an onset of tinnitus during a period of active duty for training and since that time. The service treatment reports revealed that the Veteran had a history of tinnitus of the right ear. Moreover, the post-service evidence supports a finding of chronic tinnitus. Statements and testimony from the Veteran indicate that she had tinnitus following her lightning strike in service and has suffered from the same since that time. Based on the Veteran’s reports and supporting evidence of record, a continuity of symptomatology of chronic tinnitus has been established. While the May 2010 VA examiner opined that the Veteran’s tinnitus was less likely than not caused by any event or injury in service, the examiner’s rationale was that the Veteran’s hearing loss was within normal limits with no evidence of cochlear damage/dysfunction. However, the examiner did not address the Veteran’s contentions of an onset of tinnitus following the lightning strike during a period of active duty for training or evidence of a continuity of tinnitus symptomatology. Resolving reasonable doubt in the Veteran’s favor, the claim for service connection for tinnitus is granted. 4. Entitlement to service connection for sinusitis With regard to the claim for sinusitis, the claims file is void of any evidence that the Veteran has been diagnosed with a chronic sinus disorder. The Board acknowledges that the Veteran was treated for a frontal sinusitis in December 1992 and in September 2002, the Veteran was noted to have a history of possible recurrent sinus infections. However, the objective evidence reflects that there is no evidence that sinusitis was a chronic disorder. A December 2000 MRI of the brain revealed right concha bullosa and prominence of the turbinates bilaterally. However, these findings specifically indicated that here was no evidence of accompanying ethmoid or maxillary sinus disease. Moreover, a June 2010 CT of the sinuses revealed no evidence of acute or chronic sinusitis and MRIs of the brain dated in February 2011 and November 2011 revealed incidental evaluations of the sinuses and orbits which were normal. At the hearing, the Veteran endorsed mucus drainage from her nose but she specifically testified that she had not been diagnosed with sinusitis. Consequently, there is no evidence of a diagnosed chronic sinus disability. As a result, there is no evidence to establish the presence of a chronic sinus disability, during the Veteran’s appeal. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 5. Entitlement to service connection for a heart disability With regard to the claim for a hearth disability, the Board finds the weight of the competent evidence is against a finding that it is at least as likely as not that the Veteran’s heart disability is the result of her active duty service or related to a period of active duty for training. The only medical opinion of record is the May 2010 VA opinion which is found to be the most probative evidence of record. The VA examiner reviewed the Veteran’s claims file, the literature provided by the Veteran, and other relevant medical literature and found that it was less likely than not that the Veteran’s heart disability was related to service. This opinion has been grounded in the medical evidence of record and the examiner provided a detailed rationale with reference to medical literature to support the conclusion that the Veteran’s cardiac arrhythmia of unknown type could have been caused by or related to the lightning strike in service or the Veteran’s active service. There is no other medical evidence to rebut this finding. The Board acknowledges the Veteran’s belief that her heart disability is related to her service, specifically the lightning strike which occurred during a period of active duty for training. However, while she, as a lay person, is competent to report what comes to her through her senses, she lacks the medical training and expertise to provide a complex medical opinion such as determining the etiology of her heart disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, her opinion is insufficient to provide the requisite nexus in this case. In sum, the criteria for service connection have not been met, and the Veteran’s claim for service connection for a heart disability is denied. 6. Entitlement to service connection for TMJ With regard to claim for TMJ, the only relevant medical evidence related to this disability was obtained at the May 2010 VA dental and oral examination at which time the examiner found that the Veteran had a normal temporomandibular joint examination. The examiner reported that the Veteran verbalized no chief complaint regarding her temporomandibular joint spaces or any problems with chewing, talking, pain of the TMJ area, or tenderness of the muscles of mastication. The examiner concluded that the TMJ examination performed as well as the radiographs obtained was not consistent with any TMJ dysfunction. Additionally, at the May 2016 hearing, the Veteran endorsed popping and discomfort in her jaw but she denied having been diagnosed with TMJ. Consequently, the evidence of record does not reveal a diagnosis of TMJ. The Board acknowledges that the Veteran is competent to describe her sinus symptoms, hand symptoms, and jaw symptoms. However, while she, as a lay person, is competent to report what comes to her through her senses, she lacks the medical training and expertise to provide a medical diagnosis for her complaints. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As a result, there is no evidence to establish the presence of a chronic sinus disability, a bilateral hand disability, or TMJ during the Veteran’s appeal. In the absence of proof of present disabilities, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, entitlement to service connection for TMJ is denied. Increased Rating 7. Entitlement to an initial rating in excess of 30 percent for migraine headache The Veteran’s service connected migraine headache disability is currently assigned a 30 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the previous several months. A maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical Dictionary, 32nd Edition (2012), p. 1531, “prostration” is defined as “extreme exhaustion or powerlessness.” A May 2010 VA examination report shows that the Veteran reported symptoms of seeing snow like images on series onset lasting seconds with pounding pain with nausea. Occasional vomiting and photophobia and phonophobia lasting 6-12 hours. She reported she was non-functional with headaches 25 percent of the time and could not work at least one day per month. Dizziness and balance issues with headaches were reported. The examiner reported that the headaches by themselves caused a mild interference with work, instrumental activities of daily living, or work, family or other close relationships. A review of VA and private treatment records from 2010 to 2017 indicate that the Veteran was taking medication for her migraines but was still experienced migraines on a consistent basis. A May 2017 VA examination report shows that the Veteran was assessed with migraine headaches. The examiner noted that the Veteran had previously reported in May 2010 that she missed 3 weeks of work during a 12-month period. The Veteran was noted to take medication for the migraines. Symptoms were noted as constant head pain and pain on both sides of the head. Non-headache symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision were reported. Typical duration of head pain was noted as less than one day located on both sides of the head. Prostrating attacks of migraine and non-migraine headache pain once every month. The Veteran was not assessed with very prostrating attacks of migraine or non-migraine pan productive of severe economic inadaptability. The examiner noted that the Veteran was experiencing headaches 1 time per week and could not work during migraines. Fewer than 5 weeks of work loss during the last year was reported. An April 2018 Disability Benefits Questionnaire (DBQ) shows that the Veteran was diagnosed with migraines. She was noted to use the medication of Topamax for prevention and Sumatriptan when the condition was active. Pulsating head pain was also reported. The medical provider reported that the Veteran had characteristic prostrating attacks of migraine head pain more frequently than once per month. Very frequent prostrating and prolonged attacks migraine headache pain was noted. The medical provider also noted that the condition impacted the Veteran’s ability to work but provided no further explanation. The Board further finds that the preponderance of the evidence weighs against the Veteran’s claim for a rating in excess of 30 percent for her migraines. While it is apparent that Veteran’s migraines are frequent, in that she has one headache per week, and that they impact her ability to work, the evidence does not establish that the migraines are productive of severe economic inadaptability. While the VA examiners’ opinions of record concluded that the headaches did impact her ability to work, the reports never concluded that the migraines resulted in severe economic inadaptability, which is required for the next higher rating. The Board notes that this is supported by the Veteran’s statements regarding her ability to work as she has not asserted the headaches have caused economic inadaptability and there is an absence of such in the record. To this end, the Board acknowledges the fact that the Veteran has not been working, and has been awarded as of TDIU as of May 6, 2017. However, this award was the result of her combined service connected disabilities, and not specifically her headache disorder. In so finding, the Board points out that the Veteran’s current 30 percent disability rating contemplates economic losses due to time off from work, as prostrating attacks once per week are reasonably likely to cause an individual to miss time off from work without necessarily causing them severe economic inadaptability. Additionally, while the Veteran must miss time from work when headaches are severe, there have been no reports of reduced income severe enough to suggest severe economic inadaptability. The Board has carefully considered the Veteran’s contentions with respect to the nature of her service-connected migraine and notes that her lay testimony is competent to describe the symptoms associated with such disability. The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are contemplated by the 30 percent disability rating assigned thereafter. Moreover, the Board finds that the competent medical evidence offers detailed specific findings pertinent to the rating criteria; this is the most probative evidence with regard to evaluating the pertinent symptoms of her migraine. As such, while the Board accepts the Veteran’s assertions with regard to the matters she is competent to address, such as severity of symptoms and missing work, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected migraines. Based on the above, the Board finds that the Veteran’s migraines are more consistent with the currently assigned 30 percent rating and that the preponderance of the evidence is against assignment of any higher ratings. 8. Entitlement to an initial rating in excess of 10 percent prior to May 6, 2017 for traumatic brain injury (TBI) The Veteran’s TBI is rated under Diagnostic Code 8045, which states that there are three main areas of dysfunction that may result from a TBI 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. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headaches 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 a Traumatic Brain Injury Not Otherwise Classified” table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified.” VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” 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 assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of a 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. A May 2010 VA examination report concerning TBI shows that the examiner reported the Veteran’s condition had stabilized. No history of seizures, pain, autonomic dysfunction, numbness, paresthesia, or other sensory changes. Weakness or paralysis, mobility problems, sleep disturbances, fatigue, malaise, neurobehavior changes, bowel problems, bladder problems, vision problems, speech/swallowing difficulty, decreased sensation, endocrine dysfunction, or cranial nerve dysfunction were not reported. Mild memory loss was noted. She also reported episodes where she would “space out” at times lasting seconds occurred 1 to 2 times per week but had lessened since taking Primidone. Physical examination revealed normal detail reflex examination. Sensory examination was normal. Detailed motor examination was normal. The examiner noted that there was a moderate action tremor or outstretched arms on FNF bilaterally, worse on the right. Cognitive impairment of mild memory loss was reported. Judgement was normal. Social interaction was routinely appropriate. The examiner noted that the Veteran had one or more neurobehavioral effects that did not interfere with workplace interaction or social interactions. The examiner reported that TBI had significant effects on occupational activities such as decreased concentration and pain that resulted in increased absenteeism. Daily activities affected was noted as driving. Turning to the criteria of “Under Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” the May 2010 VA examiner indicated that the Veteran had a mild memory which the Board finds equates to a “1” level of impairment under memory, attention, concentration, and executive functions. The examiner indicated that the Veteran normal judgement, normal orientation, normal motor activity, and normal special orientation which the Board finds equates to a “0” level of impairment under judgment, social interaction, orientation, motor activity, and visual special orientation. The examiner reported that the Veteran’s subjective symptoms did not interfere with work; instrumental activities of daily living; or work, family or other close relationships which the Board finds equates to a “0” level of impairment under subjective symptoms. The examiner indicated that while the Veteran had neurobehavioral effects, it did not interfere with her work place interaction or social interaction, which would result in a “0” level of impairment under neurobehavioral effects. The examiner reported that the Veteran’s communication had a “0” level of impairment. Finally, the examiner indicated that the Veteran had normal consciousness. Accordingly, a schedular rating in excess of 10 percent is not warranted under Diagnostic Code 8045 as the Veteran’s highest facet is rated at a “1,” which is assigned a 10 percent rating. 10. Entitlement to an initial rating in excess of 10 percent prior to May 6, 2017 for a psychiatric disability 11. Entitlement to a rating in excess of 50 percent as of May 6, 2017 for a psychiatric disability with TBI The Veteran’s psychiatric disability has been assigned an initial 10 percent rating prior to May 6, 2017, and a 50 percent rating thereafter pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413 and the General Rating Formula for Mental Disorders. In a February 2018 rating decision the Agency of Original Jurisdiction (AOJ) combined the Veteran’s psychiatric symptoms and her TBI residuals and assigned a single combined rating of 50 percent due to overlapping symptomatology. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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 (a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Pursuant to the General Rating Formula for Mental Disorders, a 10 percent rating is assigned when a psychiatric condition causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted when a psychiatric condition causes 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 is warranted when a psychiatric condition causes 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 per 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 a psychiatric condition causes 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when a psychiatric condition causes total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The listed symptoms in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It is not required to find the presence of all, most, or even some, of the enumerated symptoms for particular ratings. The list of examples provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each Veteran and disorder, and the effect of those symptoms on social and work impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A May 2010 VA examination report shows that the Veteran reported that she was married for 27 years. She described the marriage as great. They had two children and the Veteran was close with both of them. The Veteran also reported having lots of friends. The Veteran did not report suicide attempts, episodes of violence, or episodes of assertiveness. Psychiatric examination showed appearance as normal; unremarkable psychomotor activity; normal speech; cooperative attitude, full affect; mood was anxious; attention intact; orientation to person, time, place; normal judgement; average intelligence; insight was that she knew she had a problem; no sleep impairments; no hallucinations; no inappropriate behavior; no obsessive/ritualistic behavior; no homicidal thoughts; no suicidal thoughts; impulse control was good; no episodes of violence; and no problems with activities of daily living. Her recent memory was noted as mildly impaired. The Veteran was noted to be employed at Home Depot full time. She reported that she had lost approximately two weeks in the previous 12 months due to migraine headaches. The Veteran was diagnosed with an anxiety disorder. The examiner determined that the psychiatric condition had no effects on her occupational and social functioning. A September 2011 VA treatment record shows that the Veteran’s mood was alexithymia and she was sleeping 7 to 8 hours per night with the occasional nightmares. She reported little in terms of interest or activities. Concentration was noted as chronically poor. No appetite problems or suicidal thoughts were reported. The Veteran reported that she spaced out a few seconds at home and while driving and has been instructed by her clinician not to drive vehicles anymore. No hallucinations, delusions, obsession or compulsions were noted. She was found to be anxious. Memory for recent and remote events were slightly impaired. A July 2012 VA treatment record shows that the Veteran reported that her anxiety had improved with the use of medication. She continued to have lapses in short term memory which may have related to attention and concentration issues due to anxiety. The Veteran also reported periods os disassociation that lasted for a few seconds which has caused her not to be able to drive. No suicidal or homicidal ideations or delusions were noted. A July 2013 VA treatment record showed that the Veteran major symptom of her psychiatric disability was anxiety. A February 2013 VA treatment record noted that the Veteran’s condition was stable on medication. She did not report additional episode of lost time. An October 2016 VA treatment report shows that the Veteran was assessed with anxiety and panic disorder. The Veteran denied a history of suicidal ideations, homicidal ideations, self-injuries, or suicidal attempts. The Veteran also denied paranoia or visual hallucinations. No difficulties with activities of daily living were reported. A May 2017 VA examination report shows that the Veteran was diagnosed with an anxiety disorder. The examiner also noted that the Veteran had a TBI with migraines and anxiety that was attributable to the anxiety disorder. Occupational and social impairment was as assessed as reduced reliability and productivity. The Veteran reported that her children were good but her marriage was not as she was getting separated. She recently moved to a new city and had no relationships. The Veteran reported that she dealt with anxiety every day that impacted her life. She also reported that she depended on her daughter for help getting to places and teaching her how to use public transportation to receive care at the local VAMC. The Veteran also reported experiencing depressed mood. The examiner noted psychiatric symptoms of depressed mood; anxiety; panic attacks more than once per week; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work and worklike setting; obsessional rituals which interfere with routine activities; and impaired impulse control such as unprovoked irritability with periods of violence. A May 2017 VA examination report shows that the Veteran was diagnosed with a TBI with noted residuals of migraines. The Veteran was noted to be prescribed medication to treat the condition. Memory, attention, concentration, executive functions were assessed as a complaint of mild memory loss, attention, concentration, or executive functions but without objective evidence on testing. Judgement was normal. Social interaction was occasionally inappropriate. She was noted to be fully oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was mildly impaired as she would occasionally get lost in unfamiliar surroundings, had difficulty reading maps or following directions but was able to use assistive devices such a GPS. Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. One or more neurobehavior effects that interfere with workplace interaction, social interaction, or both but do not preclude them were noted. Communication was normal. Consciousness was normal. Residuals were noted as migraine headaches. The examiner noted that the TBI effected the Veteran’s ability to work as she was not employed, but had lost fewer than 5 weeks of work during last 12 months. Regarding whether the Veteran’s psychiatric disability warrants a rating in excess of 10 percent prior to May 7, 2017, the Board concludes that the evidence does not support a finding of occupational and social impairment sufficient to support the assignment of higher rating prior to May 7, 2017. The evidence of record does not indicate the Veteran has at all experienced symptomatology such as speech impairment, suicidal or homicidal ideation, impaired impulse control or neglect of personal hygiene, all symptoms congruent with evaluations higher than 10 percent. While the Veteran repeatedly reported anxiety as a major symptom, there was no evidence to show that this had any more than a mild effect on her social or occupational functioning. The Board acknowledges that the Veteran was consistently assessed with mild memory loss prior to May 7, 2017. While mild memory loss is one of the criteria for the next higher rating of 30 percent, the Board notes that having a symptom of a particular rating criteria on itself is not enough to warrant that rating. The presence or absence of certain symptoms is not necessarily determinative. Those symptoms must ultimately result in the occupational and social impairment specified for the rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Here, while mild memory loss was diagnosed, the evidence did not show that it was if a such severity to cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks which is required for the next higher rating. Additionally, the Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for her psychiatric disability. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that the Veteran is competent to report symptoms of a psychiatric disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). There is no basis to question the credibility of those statements. However, the Veteran is not competent to identify a specific level of impairment of a psychiatric disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of her service-connected psychiatric disability has been provided by VA medical professional who have examined and treated her. The Board finds these records to be competent and probative evidence of record, and therefore are accorded greater weight than the Veteran’s subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of her service-connected psychiatric disability. Moray v. Brown, 2 Vet. App. 211 (1993); 38 C.F.R. § 3.159 (a)(1) and (2). Therefore, an initial evaluation in excess of 10 percent prior to May 7, 2017, is not warranted. Regarding whether a rating in excess of 50 percent is warranted as of May 7, 2017 for a psychiatric disability with TBI. The Board finds that the evidence of record does not support a higher rating. The 50 percent rating contemplates occupational and social impairment with some reduced reliability and productivity due to symptoms such as panic attacks, sleep impairments, depression, and disturbances of motivation and mood. The Veteran has acknowledged feelings of sleeping difficulties, panic attacks, anxiety, and depression. No homicidal or suicidal ideations have been noted. The VA examination conducted in May 2017 noted that the Veteran was displayed symptoms of depressed mood; anxiety; panic attacks more than once per week; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work and worklike setting; obsessional rituals which interfere with routine activities; and impaired impulse control such as unprovoked irritability with periods of violence. Additionally, the examiner in considering the impact of the Veteran’s psychiatric symptomatology on her social and occupational functioning concluded that the symptoms were best captured as resulting in occupational and social impairment with reduced reliability and productivity, which is encompassed in the 50 percent rating as of May 7, 2017. The Board finds that the Veteran’s symptoms do not more nearly approximate the criteria for a 70 percent rating during any point of this appeal. The evidence simply does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that the criteria for rating both psychiatric disabilities and TBI are described in the sections above dealing with the disabilities separately. Note (1) to Diagnostic Code 8045 provides that if the manifestations for two or more conditions cannot be clearly separated, a single rating should be assigned using whichever diagnostic criteria allows for a better assessment of overall impairment of functioning. In this instance, the two VA examination reports in May 2017 as well as VA treatment record focused on the Veteran’s psychiatric symptoms and TBI. The Veteran’s disability picture with respect to her TBI residuals and PTSD as of May 2017 was one of occupational and social impairment with reduced reliability and productivity, to include difficulty in following directions, even with the use of GPS, anxiety, and the need of help of her daughter for transportation due to her short periods of spatial deterioration. Other symptoms included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. All of these symptoms, when taken together, are consistent with a disability picture which is encompassed in the 50 percent disability rating criteria. 38 C.F.R. § 4.130. The record does not show that the Veteran has deficiencies in most areas, as would be required for a 70 percent disability rating. The Veteran was attending treatment at VA facilities and had a good relationship with her daughter. No illogical speech was reported and she was able maintain good personal hygiene. As such, entitlement to a 70 percent disability rating for psychiatric disability and residuals of TBI after May 7, 2017 has not been shown. 38 C.F.R. § 4.130. The Board finds that evidence indicates that the Veteran’s TBI residual presently manifests only as mild memory loss, attention, concentration, and headaches. Turning to the criteria of “Under Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” the assessment made by the May 2017 VA examiner would not result in a rating in excess of the 50 percent assigned from May 6, 2017 as not of the residuals of the TBI would result in any of the 10 facets of TBI being assessed as “3” or as “total” which would result in higher ratings of 50 and 100 percent respectively. Accordingly, a schedular rating in excess of 50 percent is not warranted for a psychiatric disability with TBI. REMANDED 12. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 6, 2017 The Veteran has reported that she was let go of her job at Home Depot due to her spatial disassociation caused by her residuals of TBI prior to May 6, 2017. While she did not meet the schedular rating criteria for a TDIU prior the May 6, 2017, her claim should be sent to the Director of Compensation and Pension for consideration of TDIU on an extraschedular basis. The matter is REMANDED for the following action: Refer the Veteran’s claim to the Director of compensation and Pension for extraschedular TDIU consideration prior to May 6, 2017. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel