Citation Nr: 18147332 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 15-37 300 DATE: November 6, 2018 ORDER From July 8, 2008 to October 22, 2008 an initial increased rating higher than 10 percent for traumatic brain injury (TBI) residuals is denied. From October 23, 2008 to January 24, 2013, an initial increased rating of 70 percent for TBI residuals is granted, subject to the laws and regulations governing the award of monetary benefits. From January 25, 2013, an initial increased rating higher than 70 percent for TBI residuals is denied. The Veteran’s separate 50 percent rating for PTSD is restored. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED A separate rating for hearing a different word than the word spoken is remanded. A separate rating for a sensation of whole body vibration is remanded. FINDINGS OF FACT 1. From July 8, 2008 to October 22, 2008, the evidence did not show that the Veteran’s TBI residuals included multi-infarct dementia. 2. From October 23, 2008 to January 24, 2013, the evidence is at least equipoise that the Veteran’s TBI was characterized by level 3 impairment of one of the TBI facets. 3. From January 25, 2013, the Veteran’s TBI has been characterized by no more than level 3 impairment in any of the TBI facets. 4. The evidence shows some overlapping TBI and PTSD symptoms, especially relating to the Veteran’s cognitive impairment; however, the evidence, including the VA and VA-contracted examinations, also shows that other symptoms, (including anxiety, suspiciousness, hypervigilance, avoidance, and other disturbances of mood and motivation), are clearly separable. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s disability rating for PTSD should remain separate. 5. During service, the Veteran worked in logistics. He has a college degree in psychology. After service, he has worked variable hours and part time as a grocery store florist and in landscaping. VA and private treatment records and detailed statements submitted by and on behalf of the Veteran indicate that he was moved from a management track position to his current part-time florist job due to TBI and PTSD symptoms. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and finds that the evidence is at least evenly balanced for and against (in “relative equipoise”) a finding the Veteran’s service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment (in consideration of his educational and occupational background) during the appeal period. CONCLUSIONS OF LAW 1. From July 8, 2008 to October 22, 2008, the criteria have not been met for an initial increased rating higher than 10 percent for TBI residuals. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.21, 4.124a, DC 8045 (2008). 2. From October 23, 2008 to January 24, 2013, the criteria have been met for an initial increased rating of 70 percent, but no higher, for TBI residuals. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.21, 4.124a, DC 8045 (2008, 2017). 3. From January 25, 2013, the criteria have not been met for an initial increased rating higher than 70 percent for TBI residuals. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.21, 4.124a, DC 8045 (2008, 2017). 4. The Veteran’s rating for PTSD should remain separate. 38 C.F.R. § 4.124a, DC 8045, Note 1. (If manifestations [of TBI and PTSD] are clearly separable, assign a separate evaluation for each rating). 5. The criteria for TDIU have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2001 to January 2006. These matters are before the Board on appeal from a February 2013 rating decision. The RO described this issue as a claim for an earlier effective date. However, because the Veteran is not claiming an earlier effective date for service connection (meaning entitlement prior to July 2008), this claim is correctly described as a claim for increased staged ratings (meaning the Veteran is requesting that the 70 percent rating be effective earlier during the appeal period than the current January 2013 date). Accordingly, the Board has re-characterized the Veteran’s claim for an earlier effective date as a claim for an initial increased staged rating. The adjudication of the increased rating claim will encompass all effective date concerns. In addition, the RO issued a July 2018 rating decision continuing the Veteran’s 70 percent rating for TBI residuals and proposing to terminate the Veteran’s separate 50 percent rating for PTSD. In a September 2018 rating decision, the RO discontinued the separate PTSD rating, [to be] effective December 1, 2018. In effect, the September 2018 rating decision included the Veteran’s PTSD symptoms as part of the TBI rating (the issue currently on appeal). Thus, the Board is taking jurisdiction over the issue of whether the Veteran’s rating for PTSD should remain separate as part of the claim for an increased rating for TBI residuals. See 38 C.F.R. § 4.124a, Note (1) (requiring assignment of a single evaluation if the manifestations of two or more conditions cannot be clearly separated). The Board also finds that the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, and is taking jurisdiction of a claim for a TDIU rating as part and parcel of the claim seeking an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a September 2018, the Veteran waived AOJ review of evidence added to the claims file after the most recent Supplemental Statement of the Case (SSOC). Increased Rating: General Principles The Veteran is requesting a higher rating for service-connected TBI residuals Disability ratings are based on average impairment in earning capacity resulting from a disability, and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1110; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In this case, the RO assigned staged ratings of 10 percent prior to January 25, 2013, and 70 percent thereafter. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. Increased Rating: TBI Residuals Changing TBI Criteria The Veteran’s TBI residuals have been rated under DC 8045 throughout the appeal period (from July 2008 to present); however, during the appeal, VA revised DC 8045. The new criteria became effective October 23, 2008, and apply to all claims received by VA on or after that date. 38 C.F.R. § 4.124a. When regulations are revised during an appeal, the Board is generally required to consider the claim under both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the regulation provides that awards under the new criteria may not be awarded prior to October 23, 2008. 38 C.F.R. § 4.124a, Note (5). Therefore, prior to October 23, 2008, only the old criteria may be applied; however, from October 23, 2008 forward, the new criteria may be applied if they are more beneficial to the Veteran (as they clearly are in this case because they allow for a rating higher than 10 percent without multi-infarct dementia). Thus, the Board has considered both the pre- and post- October 2008 criteria in evaluating the Veteran’s claim. Old TBI Criteria Under the TBI criteria in effect prior to October 2008, purely neurological disabilities associated with the injury, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., were rated under the diagnostic code specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). 38 C.F.R. § 4.124a. Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptoms of brain trauma, were rated 10 percent and no more under DC 9304, and could not be combined with any other rating for a disability due to brain trauma. Finally, ratings higher than10 percent for brain disease due to trauma under DC 9304 could only be assigned for multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, DC 8045 (2008). Therefore, under the old criteria, ratings higher than 10 percent for brain disease due to trauma cannot be assigned unless there is diagnosed multi-infarct dementia associated with brain trauma. 38 C.F.R. 4.124a, DC 8045 (2008). New Criteria Under the new DC 8045 criteria, TBI ratings are assigned based on evaluation of different facets related to symptoms and functional impairment due to brain injuries. See 38 C.F.R. 4.124a, DC 8045 (2017). The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” 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. 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, DC 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. Id. Note (1) to DC 8045 provides: 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. Id. Factual Background During a May 2008 speech language evaluation, the Veteran reported problems with reading comprehension, math, and memory. He also reported difficulty remembering how to drive to familiar places. On examination, his speech was tangential, he asked for clarification of instructions frequently, and he had word-finding difficulty. He reported that he almost always or usually finds names, addresses, and phone numbers without assistance, keeps feelings under control, remembers things done yesterday or a few days ago, concentrates on simple tasks, and sets and achieves goals. He reported he rarely or almost never keeps track of important information without reminders, remembers things he had planned to do, or remembers friends’ birthdays. Based on these reports and additional neuropsychological testing, the evaluator concluded that the Veteran displayed mild cognitive-linguistic impairment, probably secondary to his TBI. The evaluator described the deficits as anomia, inability to put thoughts into words, and memory deficits. During May 2008 neuropsychological testing, the Veteran reported impaired short-term memory; disorganization; and difficulty with reading comprehension, time management, directions when driving, and word-finding. He also reported anxiety, panic attacks, hypervigilance, flashbacks, increased startle response, and sleep disturbance [symptoms which have been associated with the Veteran’s service-connected PTSD]. He was working toward an associate’s degree but doing poorly in school. He denied problems at work but explained that this was because his current position did require significant attention or memory skills. He was living with his fiancée and shared custody of one child. Neuropsychological testing revealed average/normal verbal reasoning, cognitive speed, auditory attention, working memory, fine motor speed, visual spatial construction, and executive functioning. Mild deficits included object naming/word retrieval, verbal speed, complex visual attention, and fine motor speed. Severe deficits included overall mental speed, auditory attention/working memory under distracting conditions, verbal speed, visual search motor speed, and visual spatial organizational planning. Memory testing showed normal to moderate deficits. In July 2008, the VA polytrauma team reviewed the Veteran’s case. The team summarized the Veteran’s neuropsychological workup as showing moderate to severe deficits with attention and noted difficulty with overall mental and motor speed when completing complex tasks. Problem-solving, reasoning, visual memory, and auditory attention/manipulation of information were classified as average. March 2009 neuropsychological testing revealed mild and mild-to-moderate impairment in attention and concentration. Nonverbal memory was above average, delayed free recall was average, and verbal memory was impaired. Retention after distraction was moderately impaired. Logical analysis and abstract reasoning was normal. The examiner concluded that the Veteran’s cognitive disorder was likely a mixture of organic and emotional factors. The examiner further explained that the Veteran’s decreased cognitive functioning was caused by the interaction between PTSD and the Veteran’s TBI-related cognitive disorder. The examiner also stated that the Veteran could manage his own finances. A July 2009 discharge summary from private TBI treatment noted that the Veteran had attended for 16 days. He met all goals for cognitive function and performed within normal limits on specific tasks of attention, complex addition, auditory memory, and communication. During the January 2013 VA examination, the Veteran reported difficulty remembering appointments and completing routine tasks as well as challenges with reading or typing with distractions. He also reported hearing a different word than the actual word spoken and experiencing a feeling of vibration throughout his body. The examiner listed the Veteran’s diagnoses as TBI and cognitive disorder, not otherwise specified, (attributed to TBI). Regarding the TBI facets and their severity levels, the examiner noted objective evidence of mildly impaired memory (2); moderately severely impaired judgment (3); occasionally inappropriate social interaction (2); occasional disorientation to person, time, place, or situation (described as losing track of time) (1); and mildly impaired visual spatial orientation (1). The examiner stated that the Veteran’s motor activity was normal (0), and that the Veteran’s subjective symptoms do not interfere with work, family, or other close relationships (0). Neurobehavior effects, described by the examiner as “agitation,” occasionally interfered with, but did not preclude, social interaction (1). Communication was only occasionally impaired (1). Consciousness was normal (0). During the October 2017 VA-contracted TBI examination, the examiner described the TBI facets and their level of severity as follows: Objective evidence on testing of mild memory impairment and/or executive functions resulted in mild functional impairment (1). The Veteran needed a notetaker to assist with college classes and at work he could not remember verbal instructions without several repetitions. Judgment was moderately severely impaired (3). The examiner noted the Veteran’s two dissolved marriages and difficulty making decisions and following through. Social interaction was occasionally inappropriate, with noted tangential speech and difficulty connecting socially with others (1). The Veteran was occasionally disorientated to time (1). Motor activity was normal. Visual spatial orientation was mildly impaired (1). There were no noted subjective symptoms (0). Neurobehavioral effects did not interfere with workplace or social interactions (0). Communication was only occasionally impaired (1). Consciousness was normal. The examiner reviewed the Veteran’s 2008 and 2009 neuropsychological testing and treatment and discussed these results in detail. The examiner also noted that the Veteran’s supervisors’ refusal to provide written instructions may have exacerbated the Veteran’s difficulty understanding and remembering information. The October 2017 VA-contracted PTSD examiner noted that the Veteran’s PTSD and TBI interacted in causing memory problems. The examiner was unable to determine the degree TBI and PTSD affected memory without resorting to speculation. The Veteran reported living alone and having “haphazard” visitation with his daughter. He was working four to six days a week split between grocery store work and landscaping. PTSD symptoms included anxiety, suspiciousness, hypervigilance, avoidance, and disturbances of mood and motivation. The April 2018 VA examiner stated that it was possible to differentiate some symptoms as related to the Veteran’s TBI versus his PTSD. Specifically, the examiner explained that the Veteran’s TBI-related cognitive problems and auditory processing symptoms overlap with some PTSD symptoms so that it is not possible to differentiate if TBI or PTSD is causing more of the cognitive dysfunction. However, the examiner stated that the Veteran’s “other emotional and nervous and psychiatric symptoms are caused by his PTSD, not the TBI.” The examiner noted that the Veteran lived alone in his own house and managed his own finances. He had one friend and was in regular contact with his parents. He spent time cleaning, running errands, or shopping. The Veteran had a bachelor’s degree in psychology and had been working at two part-time jobs for about 10 years. The examiner described the Veteran’s memory loss as mild. On examination his speech was normal, he was fully oriented (except for confusing the date of the 6th versus the 5th), and his fund of knowledge was average. During cognitive testing, he performed serial 7s, spelled the word “world” backwards, made change, and completed a simple task. Further testing showed intact memory, except for recalling only one of three objects after a five-minute delay. The examiner noted the Veteran’s report that cognitive and executive function symptoms (especially impaired memory and organizational skills) prevent the Veteran from being promoted. The May 2018 VA-contracted TBI examiner stated that the Veteran’s most significant TBI residual was impaired memory. For the TBI facets, the examiner noted objective evidence on testing of moderate memory impairment and/or executive functions resulting in moderate functional impairment (2). The examiner noted the Veteran’s report of difficulty learning new skills. The Veteran also reported that he had been moving up professionally, but that his cognitive ability limited him and he was re-assigned to work as a florist. The Veteran’s judgment was classified as moderately impaired (2). The examiner noted that the Veteran’s judgment had improved with treatment. Social interaction was frequently inappropriate (2). The Veteran was occasionally disorientated to time (1). His motor activity was normal (0). Visual spatial orientation was mildly impaired (1). Symptoms included becoming lost and difficulty using GPS. Subjective symptoms caused mild interference with work, family relationships, and instrumental activities of daily living (1). Neurobehavioral effects frequently interfered with, but did not preclude, workplace and social interactions (2). Communication and consciousness were reported as normal (0). The examiner noted difficulty determining whether certain symptoms were related to TBI or mental health because these types of symptoms can have overlapping causes. The examiner also reported that the Veteran’s scored 28 out of 30 on administered cognitive testing. Analysis At the outset, the Board notes that the Veteran is service connected for PTSD. Pursuant to the Board’s decision above, this rating shall remain separate. Consequently, the symptoms described by the examiners as due to PTSD (anxiety, panic, hypervigilance, avoidance, impaired sleep) cannot support an evaluation under DC 8045 due to the prohibition on pyramiding (compensating the same symptoms twice). See 38 C.F.R. § 4.14. July 8, 2008 to October 22, 2008 As discussed above, the Board may only consider the old TBI criteria for this period due to the specific provision in the regulation prohibiting application of the new criteria prior to its October 2008 effective date. Here, the Veteran is in receipt of a 10 percent rating. As for a rating higher than 10 percent prior to October 23, 2008, the Veteran has not reported, and the evidence, (including June 2009 and December 2009 brain MRIs and the comprehensive neuropsychological testing reports), does not show, multi-infarct dementia associated with brain trauma. Therefore, a higher rating under the old DC 8045 rating criteria is not warranted. See 38 C.F.R. § 4.124a, DC 8045 (2008). October 23, 2008 to January 24, 2013 The Veteran may be rated under the new criteria or the old criteria, whichever are more favorable, for any period from October 23, 2008 forward. See 73 Fed. Reg. 54,693 (Sept. 23, 2008); see also 38 C.F.R. 4.124, Note (5). See VBA Fast Letter 8-36 (October 24, 2008). In this case, the new criteria are clearly more favorable to the Veteran because these criteria allow a rating higher than 10 percent for TBI residuals without multi-infarct dementia. Cf. 38 C.F.R. § 4.124a, DC 8045 (2017). In the September 2017 appellate brief, the Veteran requested a 70 percent rating from the March 2009 VA examination forward. The Veteran reasoned that applying the new DC 8045 criteria to the symptoms reported in the March 2009 examination would allow for a 70 percent disability rating. After a careful review of the evidence, the Board agrees with the Veteran’s assertion and finds that an increased rating of 70 percent is warranted during this entire period. The pertinent evidence includes March 2009 examination report and the Veteran’s consistent reports of chronic symptoms, especially relating to impaired memory and cognition. The October 2008 date is appropriate for the increased rating because the law allows for compensation from when the symptoms occurred, rather than from the date of an examination documenting the worsening. See Swain v. McDonald, 27 Vet. App. 219 (2015) (holding that the effective date for an increased rating is based on when it is factually ascertainable that the disability worsened and not on the date of the examination that documented the worsening). January 25, 2013 to present After thoroughly reviewing the evidence, as summarized above, the Board finds that an increased rating higher than 70 percent is not warranted (for this period or any other period during the appeal). The pertinent evidence includes the January 2013, October 2017, April 2018, and May 2018 VA and VA-contracted TBI, neuropsychological, and PTSD examination reports and the Veteran’s March 2013, August 2015, and September 2017 written statements. During this period, the January 2013 and the October 2017 examiners assessed the Veteran’s judgment as moderately severely impaired (level three in severity and the basis for the 70 percent rating). The May 2018 examiner opined that the Veteran’s judgment had improved with treatment and classified this facet as level two in severity (moderately impaired). The January 2013 and October 2017 examiners described the Veteran’s memory and cognitive impairment as showing objective evidence on testing of mild impairment (level two in severity). The May 2018 examiner described this facet as level three in severity (objective evidence on testing of moderate impairment. None of the examiners found that any of the Veteran’s TBI symptoms amounted to total impairment. Rather, the overall clinical picture is that the Veteran has significant cognitive symptoms caused by the interaction of his TBI and his PTSD that have prevented the Veteran, a college graduate who was charge of logistics for his Marine Corps unit, from advancing beyond two part-time positions, which the evidence indicates he would have done if not for these symptoms. The examiners also noted that the Veteran’s impaired judgment (evaluated as level 3 in severity by the January 2013 and October 2017 examiners) may have contributed to the dissolution of the Veteran’s prior marriages. However, while the evidence shows significant impairment as outlined above, the preponderance of the evidence is against finding that this impairment raises to the level of that contemplated by a 100 percent rating. As noted above, the examiners provided a detailed description of the Veteran’s symptoms and how these symptoms affect the Veteran’s social and occupational functioning. However, none of the examiners found that the Veteran’s symptoms met the criteria for a 100 percent rating under DC 8045. The examiners based their assessment on a thorough review of the record including the Veteran’s extensive neuropsychological testing. In addition, there is no lay or medical evidence suggesting total impairment such as inability to understand and weigh alternatives for routine and familiar decision, inappropriate social behavior most of the time, consistent disorientation to two or more aspects of orientation, neurobehavior effects precluding workplace or social interaction or requiring supervision for the safety of the Veteran or others, or total inability to communicate. Regarding the memory, attention, and concentration facet, the evidence shows significant impairment that. as discussed above, has impeded the Veteran’s professional progress. However, the examiners clearly considered and accounted for the Veteran’s competent and credible reports of these symptoms. The examiners also carefully reviewed the Veteran’s past neuropsychological testing and administered additional contemporaneous testing, including the May 2018 mini-mental status examination. Based on the results of this objective testing, examiners described the Veteran’s impairment in the memory, attention, concentration, and executive function facet as mild and moderate. The Board assigns significant probative weight to the examiners’ conclusion because they were based on an interview and examination of the Veteran in addition to the testing. Consequently, an increased rating higher than 70 percent is not warranted. In summary, the Board acknowledges the Veteran’s competent and credible reports of relevant symptoms and appreciates his diligent efforts to describe these symptoms while living with significant disability. These lay statements are consistent with the medical evidence of record and the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the more probative medical evidence of record and the findings of the VA examiners. Based on the examiners’ reports and the consideration of the Veteran’s reported symptoms, a rating higher than 70 percent for TBI is not warranted. Finally, in the March 2013 NOD, the Veteran alleged clear and unmistakable error (CUE) in the March 2009 VA TBI examination report because the examiner did not use a DBQ form updated to reflect the new TBI criteria. The Veteran asserts that had the examiner used the updated DBQ the Veteran’s 70 percent rating would have been assigned effective March 11, 2009 (the date of the examination). Here the Board notes that CUE may only be alleged regarding a final decision, and not with an examination report or with the rating decision on appeal. As such, the Veteran need not establish clear and unmistakable error to challenge the examination report or the current rating decision. 38 U.S.C. §§ 5109A, 7104; 38 C.F.R. § 3.105(a). The concerns the Veteran has raised regarding this examination report have been addressed in the above discussion of the increased rating claim. Indeed, because the Board agrees with the Veteran that the evidence supports a 70 percent rating from the earliest date allowed by law (October 23, 2008), the benefit sought by the Veteran has been granted. The Board notes that the decision denying an increased rating higher than 70 percent does not leave the Veteran without recourse. If his disability worsens, he is encouraged to file a new claim for an increased disability rating. In addition, as discussed below, the Board is remanding the case to determine whether the Veteran is eligible to receive a higher rating under an additional diagnostic code or through extraschedular evaluation for two symptoms the January 2013 TBI examiner did not clearly associate with a specific TBI facet. REASONS FOR REMAND 1. A separate rating for hearing a different word than the word spoken is remanded. 2. A separate rating for a sensation of whole body vibration is remanded. A remand is necessary for consideration of whether the Veteran is entitled to separate schedular ratings or extraschedular ratings for disabilities associated with these symptoms, which were reported by the Veteran in the January 2013 examination report but not clearly associated by the examiner with a specific TBI facet. The matter is REMANDED for the following action: 1. Obtain all updated records of VA and adequately identified private treatment records. 2. Then schedule the Veteran for a VA examination with an appropriate examiner or examiners to evaluate the Veteran’s report during the January 2013 TBI examination of hearing different words than the words spoken and feeling whole body vibration. The examiner and the RO should determine if the Veteran is entitled to ratings for these symptoms under separate diagnostic codes. See 38 C.F.R. § 4.124a DC 8045 (Directing VA to evaluate sensory dysfunction and communication difficulties under an appropriate diagnostic code and noting the listed types of dysfunction does not encompass all possible residuals). [CONTINUED ON NEXT PAGE] 3. If either reported symptom (vibration sensation or hearing different words) is not assigned a separate schedular rating, refer the Veteran’s case to the Director, Compensation Service, for consideration of an extraschedular rating for TBI residuals for the Veteran’s January 2013 report of a sensation of vibration and hearing different words than the words spoken. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel