Citation Nr: 19149072 Decision Date: 06/24/19 Archive Date: 06/24/19 DOCKET NO. 14-37 377 DATE: June 24, 2019 ORDER A 10 percent disability rating for traumatic brain injury (TBI), prior to September 27, 2018, is granted. A disability rating in excess of 10 percent for TBI, subsequent to September 27, 2018, is denied. A 10 percent rating for dizziness, associated with TBI, throughout the period on appeal is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s TBI has been manifested by objective evidence on testing of mild impairment of memory, frequently inappropriate social interactions, and mild or occasional headaches and dizziness. 2. The Veteran’s frequently inappropriate social interactions must be rated as level 0 to avoid pyramiding with his service-connected posttraumatic stress disorder (PTSD); thus, the highest level of impairment of any facet related to symptoms is level 1. 3. The record contains objective evidence of dizziness associated with the Veteran’s TBI. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, prior to September 27, 2018, for TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.951, 4.1, 4.2, 4.3, 4.10, 4.14, 4.124a, Diagnostic Code 8045 (2018). 2. The criteria for an initial rating higher than 10 percent for TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.951, 4.1, 4.2, 4.3, 4.10, 4.14, 4.124a, Diagnostic Code 8045 (2018). 3. The criteria for a separate, 10 percent rating for dizziness have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, 4.124a, Diagnostic Code 8045-6204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2002 to March 2007 and from March 2008 to March 2010. The Veteran’s TBI is currently rated at noncompensable prior to September 27, 2018 and at 10 percent disabling under 38 C.F.R § 4.124a, Diagnostic Code 8045. He seeks a higher disability rating for the entire appeal period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran and those around him are competent to give evidence of symptoms observable by their senses, and as explained below, the Board finds their detailed and consistent statements describing such as credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran has been assigned a noncompensable rating for TBI prior to September 27, 2018 and 10 percent thereafter, under Diagnostic Code 8045. He contends that his TBI warrants higher ratings. For the reasons set forth below, the Board finds that a 10 percent rating, but no higher, is warranted for the entire period on appeal. Under Diagnostic Code 8045 for brain disease due to trauma, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), 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 should be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2018). Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI 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; even if that diagnosis is based on subjective symptoms should be separately evaluated, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI 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, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate Diagnostic Code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate Diagnostic Code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of 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 fifth 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. Assign a 100 percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a comorbid mental, 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” TBI, which may appear in medical records, refer to a classification of TBI 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. Evaluations assigned are based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. In August 2012, the Veteran underwent a VA TBI examination. At that time, the diagnosis of TBI was confirmed. Concerning memory, attention, concentration and executive functions, examination showed a complaint of mild memory loss, but without objective evidence on testing. Judgment was found to be normal. Social interaction was found to be routinely appropriate. The Veteran was always oriented to person, time, place and situation. Motor activity and visual spatial orientation were normal. As for subjective symptoms, the Veteran experienced symptoms that did interfere with work; instrumental activities of daily living; or work, family or other close relationship. He reported mild or occasional headaches and mild anxiety. As concerned neurobehavioral effects, the Veteran reported one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction or both, but did not preclude them. These effects were described as irritability and aggression which had not led to legal issues, but did interfere at times with family and home life. The examiner determined that these symptoms were related to both the TBI and the Veteran’s service-connected PTSD, with PTSD being the cause of most of the symptomology. The Veteran was found to be able to communicate by spoken and written language and to comprehend the same. Consciousness was normal. As concerned residuals, the Veteran reported headaches, dizziness and vertigo. He also reported hearing loss and PTSD, which were separately evaluated. In a January 2013 letter, Dr. P.J.L., the Veteran’s private physician, noted that the Veteran’s TBI caused a hearing problem and dizziness. In August 2014, the Veteran’s friend D.L. explained the changes he had seen in the Veteran since his military service. He noted the Veteran’s irritability, lack of motivation, aggression, lack of concentration, moodiness and apathy. D.L. explained that the Veteran had memory problems and could not remember events, including important past events, and sometimes events from day to day. Also in August 2014, Dr. P.J.L. submitted an additional letter, in which he described the Veteran’s memory loss, difficulty concentrating, participating in and following conversations, misplacing items and remembering conversations and names. The Veteran had difficulty with decision making, and great difficulty with making and keeping friends. He was prone to angry outbursts and often made rude and inappropriate remarks, to Dr. P.J.L.’s staff and others. The Veteran continued to have headaches, anxiety, sensitivity to sound and light, and tinnitus. The doctor had observed the Veteran become physically and verbally aggressive while in his office. The Veteran had an attitude of inflexibility and an inability to see things outside of his own perception, to include awareness of his impaired actions. Dr. P.J.L. determined that the Veteran would be best served by an extensive and detailed evaluation. In a September 2014 letter, Dr. P.J.L. reported that he had evaluated the Veteran for TBI residuals. He concluded that the Veteran was experiencing residual effects of a moderate TBI, and had been since December 2010, when he first came under his care. Dr. P.J.L. noted that certain neurological functions had been affected, but also that the TBI had caused the Veteran to experience dramatic changes in his ability to maintain appropriate social interactions. He noted a recent attempt at education, in which the Veteran was only able to complete a semester and a half of college before dropping out. He was having marital problems related to his aggressive behavior, irritability, verbal aggression and inflexibility. Also in September 2014, a licensed professional counselor/mental health service provider authored a letter in which he relayed the Veteran’s symptomology. He indicated that the Veteran reported impairment of memory, attention and concentration. The Veteran also reported neurobehavioral symptoms such as irritability, impulsivity, verbal aggression, lack of empathy, and moodiness, as well as subjective symptoms such as headaches, tinnitus and insomnia. These symptoms were reported to be affecting his marriage and other relationships. In a September 2014 evaluation report, a Nurse Practitioner indicated that she had reviewed Dr. P.J.L.’s letters and disagreed with his assessment that the Veteran’s TBI was moderate. Due to the length of time since the TBI, she explained, the Veteran’s persistent impairment was severe. She noted memory loss, tinnitus, difficulty with concentration and social interaction, and problems with close relationships. The Nurse Practitioner noted that PTSD had some similar components but was substantially different from the residual effects of a TBI. She recommended further neuropsychological testing. In January 2015, the Veteran underwent a VA PTSD examination. At that time, the VA psychiatrist determined that it was not possible to differentiate which symptoms were attributable to PTSD and which were caused by the TBI. He explained that there was “too much overlap” of symptoms between the conditions. At that time, the Veteran was found to be experiencing the following PTSD symptoms: a depressed mood; anxiety; suspiciousness; panic attacks at least once a week; chronic sleep impairment; mild memory loss; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mod; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a work-like setting; inability to establish and maintain effective relationships; a neglect of personal hygiene; and the intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In September 2018, in response to the Board’s July 2018 remand, the Veteran underwent multiple VA examinations in relation to his TBI. A TBI examination showed mild memory loss, with the Veteran reporting problems with short-term memory, focus and concentration. Judgment was found to be normal. Social interaction was routinely appropriate. The Veteran was oriented to person, place, time and situation. Motor activity was normal, as was visual spatial orientation. The Veteran reported subjective symptoms which did not interfere with work; specifically, headaches which occurred several times a month. No neurobehavioral effects were noted, and communication was normal. TBI residuals of gait, coordination and balance were noted, as were headaches. A separate vertigo examination showed dizziness not treated by medication. Tinnitus and hearing loss were noted, although a separate contemporaneous examination showed them to be due to military noise exposure. No surgical intervention had been performed, and the Veteran’s ears were normal. Gait was also normal. Unsteadiness was found, using the Romberg test. Vertigo was absent and limb testing was normal. The Veteran reported experiencing dizziness when rising from a kneeling position at work. He had difficulty making sudden movements and was easily fatigued. A separate headaches examination showed pain without symptoms such as nausea or vomiting, or sensitivity to light or sound. Headaches typically lasted less than a day and were not considered migraines. The examiner concluded that it was impossible to differentiate the Veteran’s TBI symptoms with his mental health symptoms without resorting to speculation, as it was very common for such symptoms to overlap. Prior to September 27, 2018 Based on the above, the Board finds that the Veteran has met the criteria for a 10 percent disability rating for TBI, prior to September 27, 2018. As an initial matter, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. Essentially, under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. The Court held that for purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. See Esteban, supra. Here, some of the Veteran’s symptoms for residuals of TBI overlap with his symptoms of service-connected PTSD, such that to rate him under both the criteria for TBI under Diagnostic Code 8045 and PTSD under Diagnostic Code 9411 would constitute pyramiding. For the TBI facet of memory, attention, concentration and executive function, lay statements discuss memory and concentration problems. The August 2012 VA testing and Dr. P.J.L.’s August 2014 letter each revealed mild memory loss. The VA examiner determined there was no objective evidence of such on testing. This equates to a 1 on the TBI table. The VA examiner found the Veteran had normal judgment and the lay evidence does not refute this finding. Therefore, a 0 in the TBI table is appropriate. For social interactions, the lay evidence shows frequently inappropriate social interaction, as noted by Dr. P.J.L. and D.L.’s August 2014 letter. However, these symptoms have been attributed to the Veteran’s PTSD. Therefore, the Board finds that a 0 on the TBI table is warranted. There is no evidence of loss of orientation; therefore, a 0 is appropriate for that facet in the TBI table. For motor activity, the VA examiner found normal motor activity and the evidence does not suggest symptoms of impaired motor function. The Board finds the examination results highly probative as motor function is best analyzed with medical testing and expertise. As such, a 0 is appropriate in the TBI table for motor activity. For visual spatial orientation, the examiner found normal visual spatial orientation, which warrants a 0 in the TBI table. The examiner found no subjective symptoms that interfered with work, instrumental activities of daily living, or close relationships; by contrast the lay statements describe much difficulty with work and interaction with others, due to symptoms attributed to the Veteran’s PTSD. Thus, the Board finds that a 0 is appropriate for subjective symptoms in the TBI table. The August 2012 examiner found no neurobehavioral symptoms. Again, the Board notes that the Veteran’s symptoms of anxiety, irritability, and other psychologic symptoms are considered in the rating criteria for PTSD and may not be compensated again under the rating for TBI. As there are no neurobehavioral symptoms attributable to only TBI, a 0 is appropriate for this facet in the table. For communication, the examiner found the Veteran had the ability to communicate by spoken and written language, warranting a 0 in the TBI table. Finally, there is no evidence of problems with consciousness. Therefore, as the evidence demonstrates level 1 impairment in the facet of memory, the Board finds that a rating of 10 percent is warranted for the period prior to September 27, 2018. See 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 3.921, 4.1-4.16, 4.14, 4.124a, Diagnostic Code 8045. The Board notes that, in her September 2014 report, the Nurse Practitioner indicated that the Veteran’s PTSD had some similar components, but was substantially different from, the residual effects of TBI, possibly suggesting that his difficulty with social interaction and relationship problems were due to TBI. However, she did not explain this conclusion and the Board accords no probative value to her report. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly-reasoned opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)(“[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Thus, the Board again notes that the Veteran’s difficulty with social interaction and relationships are to be considered part of his service-connected PTSD. Therefore, for the reasons set forth above, a 10 percent rating is warranted for the Veteran’s TBI prior to September 27, 2018. After September 27, 2018 Based on evidence of record, the Board finds that a disability rating higher than 10 percent for TBI is not warranted subsequent to September 27, 2018. The report of the September 2018 VA examination reflects that the Veteran’s symptoms of TBI continued to be mild memory loss, attention, and concentration. Likewise, the Veteran complained of subjective symptoms that included weekly headaches and dizziness. These symptoms most approximately resulted in a level of severity of 1 for the memory facet, and a level 1 for the subjective facet, which resulted in interference with work or activities of daily living. To warrant a 2 under the subjective facet, the Veteran would need to have 3 or more subjective symptoms which interfered with work, family or other close relationships. Here, any interference with his interpersonal relationships, including work, has been attributed to PTSD. Thus, as the Veteran’s TBI symptoms rate as a 1 under both the memory facet and subjective facet, a rating higher than 10 percent is not warranted. A 0 is assigned for the judgment facet as that numeral represents normal, which was shown at the September 2018 VA examination. For a 1, mildly impaired judgment would have to be seen. A 0 is assigned for the orientation facet, as the Veteran is oriented in all spheres. Occasional disorientation for a 1 is not shown. Motor activity also is assigned a 0 as this is normal. Motor activity that is normal “most” of the time is not demonstrated, so a 1 is not appropriate. A 0 is assigned for visual spatial orientation in that such appears normal. For a 1, the Veteran would have to exhibit mild impairment, such as getting lost in unfamiliar surroundings, have difficulty reading maps or following directions, and use a GPS system. There is no indication of mild spatial impairment. A 0 is assigned for neurobehavioral effects in that the Veteran has one or more neurobehavioral effects that do not interfere with workplace interaction. There is no indication that the Veteran’s neurobehavioral effects occasionally interfered with work-place interactions, social interactions, or both, but did not preclude them, so as to warrant a 1. As noted above, these symptoms have been adequately attributed to the Veteran’s PTSD. A 0 is assigned with communication, as the Veteran is able to communicate by spoken and written language, and comprehend spoken and written language. The Veteran does not warrant a total rating for consciousness, as he was not in a persistently altered state of consciousness, such as vegetative state, minimally responsive state, or in a coma after September 27, 2018. Thus, based upon the foregoing, the Board must find that a rating in excess of 10 is not warranted after September 27, 2018 for the Veteran’s TBI. See 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 3.921, 4.1-4.16, 4.14, 4.124a, Diagnostic Code 8045. Separate ratings for physical dysfunctions of TBI The Board finds that the Veteran’s associated headache symptomatology does not warrant a separate compensable evaluation. Under Diagnostic Code 8100, the maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable disability rating is warranted for migraine headaches with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” nor has the Court. (Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY p. 1531 (32nd ed. 2012), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Here, however, the Veteran experienced no characteristic prostrating attacks of migraine/non-migraine headache pain. As such, a separate compensable evaluation for headaches under Diagnostic Code 8100 is not warranted. On the contrary, the Board does find that the Veteran’s associated dizziness does warrant a separate rating as of October 22, 2018. As part of a VA ear conditions examination undertaken on that date, the Veteran was diagnosed with benign paroxysmal positional vertigo. Diagnostic Code 6204 addresses peripheral vestibular disorders and provides for a 10 percent rating for occasional dizziness supported by objective findings and a 30 percent rating for dizziness with occasional staggering. 38 C.F.R. 4.87. As the evidence contains objective evidence of dizziness, a 10 percent rating is warranted. The Board finds that a 30 percent rating is not appropriate, because there is no evidence of dizziness and occasional staggering. The Veteran has consistently reported dizziness; however, the September 2018 examiner noted gait, coordination, and balance conditions as subjective symptoms but on testing found a normal gait. Therefore, the evidence does not support a finding of balance problems severe enough to result in staggering. Therefore, a rating in excess of 10 percent is not warranted. See 38 U.S.C. § 5107. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.