“Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.” 2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988));
Single Judge Application; brain trauma 1970; 38 C.F.R. § 4.124, DC 8045 (1970) (providing that “[p]urely subjective complaints, such as headache, dizziness, insomnia, tinnitus, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304”); in 1989, the Board erred by incorrectly applying the regulatory provisions in effect at the time of its decision. Specifically, the Court determined that the version of DCs 8045 and 9304 in effect at the time of the May 1989 Board decision provided that brain disease due to trauma was rated under DC 8045 as follows: “Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.” 2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988));