Citation Nr: 18130996 Decision Date: 08/30/18 Archive Date: 08/30/18 DOCKET NO. 04-30 674 DATE: August 30, 2018 ORDER A disability rating of 50 percent, but no higher, for post-traumatic headaches is granted. A disability rating in excess of 40 percent for traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran’s post-traumatic headaches have been manifested by very frequent prostrating and prolonged attacks of headache pain, which have been shown to be productive of severe economic inadaptability. 2. The Veteran’s residuals of TBI result in not more than a ‘2’ designation for all other facets of cognitive impairment under the TBI criteria. As to the former criteria, there has been no diagnosis of multi-infarct dementia. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no higher, for post-traumatic headaches are met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.124a, Diagnostic Code 8100 (2017). 2. The criteria for a rating in excess of 40 percent for traumatic brain injury residuals are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.124a, Diagnostic Code 8045 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1982 to April 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in May 2007, January 2011, September 2012, August 2014, March 2016, and January 2018. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In a February 2003 VA treatment record, the Veteran reported headaches, occasionally daily at times and increased with activity and fatigue. The Veteran took Tylenol for headaches. At a May 2003 VA neurological disorders examination, the Veteran reported constant left-sided headaches. He described the pain as throbbing in nature and stated that it began approximately three years ago. H saw spots in his eyes when these headaches occurred. He had been taking Tylenol for these headaches. He noted that the had a headache every day at lunch time. He lost his job working in a car dealership due to poor performance. He needed to take breaks when the headaches occurred and he had difficulty concentrating when he had a headache, nad therefore experienced decreased productivity at work. On mental status examination, the Veteran was awake, alert, and cooperative. The cranial nerve examination was unremarkable. The impression was daily headaches. During his May 2005 Board hearing, the Veteran testified that he had headaches, almost if not every day, every other day. He described a stinging, needle prick-like sensation, on the left top part of his head. He stated he woke up in the morning with a headache and he took 1000 mg of Tylenol every day to prevent them. He also stated he was laid off from a job because his headaches got so severe that he had to take breaks. During a May 2008 private neuropsychological evaluation, the Veteran reported ongoing difficulties with headaches about 2 to 3 times per week. The headaches were helped by eating ice. It was noted the headaches were not of migraine-type but were of a sharp quality in the temporal area lasting for about 10 minutes without obvious cause. These tended to occur more in the early morning and diminish as he exercised. On behavioral observation, the Veteran was generally well-oriented and appeared to be a generally reliable informant. Thought process was logical and coherent with no overt signs of thought disorder. Based on the neuropsychological test results, the private physician concluded that the Veteran was of reasonably solid intellectual ability in the low average to average range. His pattern of difficulty with various language-based academic functions and verbal knowledge, however, indicated the presence of a mild developmental learning disability, which appeared somewhat broader in scope than dyslexia and including some abilities affecting visuospatial function. While memory and executive function appeared intact, the Veteran’s learning disabilities appeared to make it difficult, for him at times to effectively organize and remember larger amounts of more complex new information. During a December 2008 VA neurological disorders examination, the Veteran reported headaches since 1982 in the left occipital and temporal region, no nausea or vomiting, at times mild. He reported poor concentration and memory. It was noted that the Veteran used to work as a hairdresser but he lost his job due to severe headaches related to triggers from the chemicals. He was advised to stop working as a hair dresser. He then was sent to school but he was not able to attend the school due to excessive sleepiness during the day. During a January 2011 VA general medical examination, the Veteran reported daily headaches which were relieved with 1000 mg of Tylenol but which were exacerbated with reading and driving. The headaches were incapacitating when present. The examiner opined that the Veteran’s post-trauma headaches rendered him unable to serve or follow a substantially gainful occupation because the headaches were severe in nature. The examiner explained that the incapacitating nature of the headaches and the inability to train for new professions due to the headaches would render the Veteran unemployable. During a VA TBI examination in the same month the Veteran related that since 1982, he had chronic posterior headaches (left occipital-temporal) without other migrainous symptoms. He also noted subjective cognitive complaints. He had daily dull headaches occurring intermittently several times most days and lasting several minutes. He needed to stop what he was doing. He occasionally saw spots but no other visual aura. He occasionally experienced nausea and photosensitivity. Headaches were relieved with Aspirin and Tylenol. He rated the severity of his headache 5 on a scale of 1 to 10. Overall intensity improved compared with the late 1980s but duration and quality was unchanged while walking, standing or getting up fast. Relative to his TBI symptoms, the Veteran reported mild to moderate memory impairment in the last few years; he perceived short-term memory worsening in the last couple of years. He stated he needed to write everything down. He managed his own finances but occasionally missed appointments. Regarding other cognitive problems, he reported slowness of thought, occasional confusion, decreased attention, difficulty concentrating, difficulty understanding directions, using written langue or comprehending written words, delayed reaction. Regarding executive functions, the Veteran only reported difficulty with speed of information processing, but no difficulty with goal-setting, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, or flexibility in changing actions when they are not productive. In a November 2011 VA Neurology note, the Veteran stated that he had two types of headaches: (1) headaches that lasted all day, occurring 1 to 2 times a week, often exacerbated by sounds or smells; they were pounding and throbbing pain lasting 8 to 12 hours and prevented him from working, and, (2) “short headaches” that were more concerning to him because they were very frequent, sharp and quick pain lasting about 5 minutes and occurring sometimes twice a day; these headaches were associated with spotting vision, occasionally. The headaches were associated with flashing lights, smells/tastes sometimes. During a September 2014 VA Headaches examination, the Veteran reported experiencing headache pain, pulsating or throbbing in nature, localized to the left side of the head, worsened with physical activity, and associated with non-headache symptoms of sensitivity to light, sensitivity to sound, changes in vision and sensitivity to smells. Typical head pain lasted less than one day. The report indicated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. In a December 2014 written statement, the Veteran indicated that his headaches could last for hours, 3 to 4 times a week. In May 2016, the Veteran reported forgetfulness, struggling to complete tasks, concentration issues, and problems with speech. A May 2016 VA TBI examination report notes that the Veteran manages his instrumental activities of daily living and that he is an excellent historian. His treatment plan for TBI included taking continuous medication. The examiner noted that there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. It was noted that the Veteran’s judgement was normal; his social interaction was routinely appropriate; he was always oriented to person, time, place and situation; his motor activity was normal with intact motor and sensory system; his visual spatial orientation was normal; his subjective symptoms did not interfere with work, instructional activities of daily living; his TBI had no neurobehavioral effects; he was able to communicate by, and comprehend, spoken and written languages; his consciousness was normal. During a May 2016 VA Headaches examination, the Veteran reported pulsating or throbbing head pain with associated symptoms of nausea, sensitivity to light, sensitivity to sound, and neck pain and spasms; the head pain lasted less than 1 day. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine headache pain, less than once every 2 months, but he did not have very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain. An April 2017 VA Headaches examination report noted that the Veteran experienced pulsating or throbbing, aching and sharp shooting head pain localized to one side of the head and associated symptoms of sensitivity to light, sound, and touch, and pain on left side of the face. The headaches lasted less than 1 day. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain and very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. His headache condition impacted his ability to work because of difficulty doing any activity during headaches; he previously worked as a hair stylist, but had to stop because chemicals triggered headaches. The examiner stated that the frequency of prostrating attacks is more than once per month productive of economic inadaptability. A June 2017 VA TBI examination report notes that the Veteran complained of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, of often misplacing items), attention, concentration, and executive functions, but without objective evidence on testing. He reported forgetting to take his medications, leaving the stove on and forgetting who he was talking to on the phone. It was noted that the Veteran’s judgement was normal; his social interaction was routinely appropriate; he was always oriented to person, time, place and situation; his motor activity was normal with intact motor and sensory system; his visual spatial orientation was normal; he had no subjective symptoms; his TBI had no neurobehavioral effects; he was able to communicate by, and comprehend, spoken and written languages; his consciousness was normal. The examiner indicated that the Veteran did not work because he was disabled not due to his TBI. 1. Entitlement to a disability rating in excess of 10 percent for post-traumatic headaches. The Veteran’s service-connected post-traumatic headaches are currently evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. Id. The rating criteria do not define “prostrating” nor has the Court of Appeals for Veterans Claims. Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” After reviewing the evidence, the Board concludes that a 50 percent rating is warranted for the Veteran’s service-connected posttraumatic headaches. In making this determination, the Board finds that the Veteran’s statements are competent evidence regarding the frequency and severity of his headache symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds that his reports as to the severity and frequency of his headaches is credible, and demonstrates that they are very frequent and completely prostrating. While the VA examinations and treatment records provide some inconsistent information regarding the nature and frequency of his headaches, the Veteran has since reported that VA examiners inaccurately reported several of his statements, to specifically include his accounts of prostrating headaches. Furthermore, the April 2017 VA examiner confirmed that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain and very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner stated that the frequency of prostrating attacks is more than once per month, and that they are productive of economic inadaptability. Thus, the Board finds that based on the foregoing evidence, and with consideration of the frequency, intensity, and duration of the headaches, as well as the functional impact, the Veteran’s posttraumatic headaches result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, more closely approximating the criteria for a 50 percent disability rating. See 38 C.F.R. § 4.7 (2017) (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). A 50 percent disability rating is the maximum rating available for migraine headaches under Diagnostic Code 8100. 2. Entitlement to an initial rating in excess of 40 percent for TBI. A. TBI: current law in effect from October 23, 2008 TBI is rated in accordance with Diagnostic Code 8045. The criteria pertaining to residuals of TBI under Diagnostic Code 8045 effective from October 23, 2008, are set out below: There are three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: cognitive (which is common in varying degrees after traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury, Not Otherwise Classified.” Subjective symptoms may be the only residual of traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of traumatic brain injury are evaluated, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury, Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury, Not Otherwise Classified” table. Emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings—mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury, Not Otherwise Classified.” Physical (including neurological) dysfunction based on the following list, is to be evaluated 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 traumatic brain injury. Residuals not listed here that are reported on an examination are evaluated 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 are to be combined under § 4.25 for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury, Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. With regard to the evaluation of cognitive impairment and subjective symptoms, Diagnostic Code 8045 provides for the following: The table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury, Not Otherwise Classified” contains 10 important facets of traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100-percent disability rating is to be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall disability rating is to be 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 disability rating is assigned if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of Traumatic Brain Injury, Not Otherwise Classified” with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Note (5): A Veteran whose residuals of traumatic brain injury are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008, may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that Veteran’s disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. The rating schedule for evaluating cognitive impairment and other residues of traumatic brain injury not otherwise classified provide that facets of cognitive impairment and other residuals of traumatic brain injury not otherwise classified provide numerical designations based on certain proscribed levels of impairment. These evaluations are set forth as follows: 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. 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. 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. 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. 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. Total...Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: 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. Total...Severely impaired. 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. 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. 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. 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. 38 C.F.R. § 4.124a (effective October 23, 2008). B. TBI: effective prior to October 23, 2008 The schedular criteria by which traumatic brain injuries are rated were changed during the pendency of the Veteran’s appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). These changes were made effective from October 23, 2008, and for claims filed on and after that date. Where a law or regulation (particularly pertaining to the rating schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The effective date rule established by 38 U.S.C. § 5110(g) (2012), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. Where the rating criteria is amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (holding that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise). Traumatic brain disease was previously rated under Diagnostic 8045, which provides that purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (prior to October 23, 2008). Claimants whose residuals of traumatic brain injury were rated by VA under a prior provision of 38 C.F.R. § 4.124a, Diagnostic Code 8045 will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. The Board has considered whether the Veteran could be afforded a rating in excess of 40 percent for his TBI under Diagnostic Code 8045. However, it finds that application of that diagnostic code does not afford him a rating in excess of 40 percent, under either the current or former diagnostic criteria. Under the table for rating TBI residuals found at Diagnostic Code 8045, the headaches do not produce cognitive impairment, or emotional/behavioral or physical (including neurological) dysfunction. The descriptions of these categories do not include headaches. In the cognitive symptoms category, the Veteran’s residuals of TBI have been manifested by no greater than level 2 impairment for any of the 10 facets under the Cognitive table. For memory impairments, the Veteran has consistently complained of memory loss and difficulty with concentration and attention. However, a comprehensive neuropsychological evaluation in May 2008 revealed that while the Veteran had developmental learning disability, his memory and executive functions were intact. The May 2016 VA TBI examiner noted that there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, although the June 2017 VA TBI examiner pointed that there was no objective evidence of cognitive impairment on testing. Nevertheless, resolving any reasonable doubt in the Veteran’s favor, the Board finds that the evidence of record is indicate of level 2 impairment for memory, attention, concentration and executive functions. With regard to judgment, both the May 2016 and June 2017 VA examiners concluded that the Veteran’s judgment was normal, indicative of level 0 impairment. Additionally, social interaction was routinely appropriate according to the VA examiners, indicative of level 0 impairment. As for orientation, it was determined that the Veteran was always oriented to person, time, place, and situation, suggestive of level 0 impairment. As for motor activity, the VA examiners found the Veteran’s motor activity to be normal, indicative of level 0 impairment. The VA examiners noted that the Veteran’s visual space orientation was normal, suggestive of level 0 impairment for visual space orientation. With regard to subjective symptoms, the May 2016 VA examiner found that the Veteran’s subjective symptoms did not interfere with work, instrumental activities of daily living, or family or other close relationships, which equates to level 0 impairment of relating to subjective symptoms. As for neurobehavioral symptoms, the VA examiners reported that the Veteran’s TBI had no neurobehavioral effects, which equates to level 0 impairment for neurobehavioral effects. With regard to communication, at the May 2016 and June 2017 VA examinations, the Veteran was able to communicate by spoken and written language and to comprehend spoken and written language, indicative of level 0 impairment for communication. Additionally, the VA examiners reported that the Veteran’s consciousness was normal, and there was no evidence of persistently altered state of consciousness. Accordingly, based on the evidence of record, an initial rating greater than 40 percent for TBI is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board observes that the Veteran experiences emotional/behavioral symptoms that are already contemplated in the disability rating of his service-connected posttraumatic stress disorder (PTSD), which is currently evaluated as 50 percent disabling from February 27, 2003 and as 70 percent disabling from October 25, 2010. Additionally, separate disability ratings are assigned for physical and neurological dysfunction associated with the Veteran’s TBI, such as obstructive sleep apnea, tinnitus and painful scars of the face. Finally, considering the criteria for Diagnostic Code 8045 prior to October 23, 2008, purely subjective complaints would be rated at 10 percent under Diagnostic Code 9304 (dementia due to head trauma) and no more and would not be combined with any other rating for disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. The record does not show such a diagnosis. Thus, a higher rating is not warranted based on the former criteria for the period prior to October 23, 2008. If an exceptional case arises where a rating based on the disability rating schedule is found to be inadequate, consideration of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). However, an extraschedular analysis is not required in every case. When extraschedular consideration is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted.” Yancy v. McDonald, 27 Vet. App. 484, 494 (2016); see also Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances to raise the extraschedular issue). Here, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. As the preponderance of the evidence is against the claims for increased ratings, there is no doubt to be resolved, and initial ratings greater than those assigned herein for the Veteran’s [disability/disabilities] are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel