Citation Nr: 1035821 Decision Date: 09/22/10 Archive Date: 09/28/10 DOCKET NO. 09-19 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder, cognitive deficit, headaches, residuals of a concussion (claimed as a traumatic brain injury (TBI)), to include the question of whether the Veteran is entitled to a separate rating for all residuals of the TBI, including headaches, cognitive deficits (short-term memory loss, dizziness and problems processing information), blurred vision, difficulty focusing and muscle spasm in the right eye. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from September 1983 to September 1984, from May 1989 to August 1990, from February 1991 to May 2000 and from January 2003 to April 2005, including in Kuwait and Iraq. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The RO characterized the claim on appeal as entitlement to a rating in excess of 70 percent for PTSD with major depressive disorder, cognitive deficit, headaches, residuals of a concussion (claimed as a traumatic brain injury (TBI)). Given the procedural history of the claim and the Veteran's assertions, however, the Board has recharacterized the claim as is shown on the prior page of the decision. By rating decision dated October 2005, the RO granted the Veteran service connection for PTSD with major depressive disorder, cognitive deficit, headaches, residuals of a concussion. In the body of the decision, the RO explained that it granted the benefit based on stressors the Veteran experienced during service in Kuwait and Iraq. These stressors, mostly combat in nature, included being knocked unconscious during a parachute jump and getting rammed by a pickup truck. In November 2010, the Veteran filed a claim for service connection for a TBI. Interpreting this claim as one for an increased rating, the RO granted it in part (increased the evaluation from 50 to 70 percent) by rating decision dated January 2009. Thereafter, the Veteran filed a notice of disagreement with the decision. He argued that the RO should have separately service connected him for residuals of the TBI and assigned those residuals a separate rating, that his PTSD results from in-service stressors and his TBI results from in- service concussions, and that, although some of the symptoms of the PTSD and TBI overlap, most are distinct and separate, warranting separate disability ratings. Below, the Board grants the Veteran entitlement to a separate rating for residuals of his TBI. The Board then discusses the appropriate evaluation to be assigned that disability in the REMAND section of this decision, below, and REMANDS that matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDING OF FACT The Veteran's headaches and cognitive deficits, recently attributed to a TBI, and PTSD result from one of the same in- service injuries/incidents and, although some of the emotional and behavioral symptoms associated with the TBI and PTSD overlap, the Veteran's headaches and cognitive deficits are post- concussive in nature and therefore separate and distinct from his stressor-induced psychiatric disability. CONCLUSION OF LAW The criteria for entitlement to a separate rating for residuals of a TBI are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.14 (2009); Esteban v. Brown, 6 Vet. App. 259 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2009). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure compliance with the provisions of the VCAA, when applicable, such as in this case. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO here has not considered the portion of the claim the Board is now deciding, let alone satisfied the requirements of the VCAA by providing the Veteran adequate notice and assistance with regard thereto. Inasmuch as the Board's decision is favorable, however, the Veteran suffers no prejudice as a result of the Board's decision to proceed in this regard. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Analysis The Veteran asserts that he should be separately service connected/rated for residuals of a TBI because they developed from in-service concussions, rather than in-service combat stressors, from which his PTSD developed. He acknowledges that some of the symptoms of his psychiatric disability and TBI residuals overlap, but contends that most of his symptoms, including his headaches, cognitive deficits (short-term memory loss, dizziness and problems processing information) and vision problems (blurriness, difficulty focusing and muscle spasms on the right) are distinct and separate from his psychiatric disability, warranting a separate disability rating. Pyramiding, or the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes, is to be avoided when evaluating a service-connected disability. 38 C.F.R. § 4.14 (2009). It is possible, however, for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this case, since 2005, when the Veteran initially filed claims for service connection for PTSD/major depressive disorder, headaches, a cognitive disorder and residuals of two concussions, he has exhibited some symptomatology found to be due to combat- related stressors, some symptomatology found to be due to the concussions, and some symptomatology found to due to both. Despite this, by rating decision dated October 2005, the RO considered the residuals of both the combat trauma and concussions collectively and granted the Veteran service connection for PTSD with major depressive disorder, cognitive deficit, headaches, residuals of a concussion. In June 2005, during a VA neurological examination, an examiner noted that the Veteran suffered a concussion at Fort Bragg in 1996 and had a motor vehicle accident in 2003 in Bagdad, after which he began to experience headaches and sleeping difficulties. The examiner also noted that the Veteran had a post-traumatic cognitive deficit as well as situational depression. During a VA PTSD examination conducted the same month, the examiner diagnosed PTSD and major depression based on in-service stressors, including the accidents that led to the concussions; he also acknowledged treatment for a cognitive disorder, but, with the exception of sleeping difficulties, he did not include consideration of the reported symptoms thereof, or of the headaches in diagnosing the PTSD and major depression. The Board infers that he believed that the symptoms were separate and distinct from the ones attributable to the PTSD and major depression. In 2005 and 2006, during VA outpatient treatment visits, medical professionals described the cognitive disorder as having occurred after an in-service motor vehicle accident and considered it separately from the Veteran's psychiatric disability. Again, the medical professionals discussed the Veteran's sleeping difficulties in conjunction with his mental health issues, but not his headaches. In October 2008, the Veteran underwent a comprehensive TBI/polytrauma consultation, during which medical professionals determined that the Veteran had a TBI in combination with a behavioral health condition. They noted headaches, cognitive deficits, mental health deficits and visual complaints secondary to the TBI and recommended follow up with psychiatry, psychology, neurology and optometry. After the Veteran filed a claim for service connection for a TBI, he underwent VA examinations, during which examiners did not consider the Veteran's headaches or symptoms of his cognitive disorder in evaluating the severity of his PTSD and major depressive disorder. In December 2008, during a VA TBI and neurological examination, the examiner, without the benefit of a review of the claims file, noted, in part, headaches, dizziness, vertigo, sleeping disturbances, cognitive problems, including memory loss, depression, anxiety and mood swings. He indicated that symptoms of the Veteran's cognitive disorder were worsened by his comorbid PTSD. He further indicated that, in part, the TBI stemmed from the same condition as the Veteran's service-connected disability. He characterized the headaches as post-concussive in nature, however, and did not consider them a part of the Veteran's psychiatric disability. He concluded that some of the Veteran's emotional and behavioral signs and symptoms were residuals of a TBI, but that it was not possible to determine the extent to which those symptoms were due to the TBI without resorting to mere speculation. In December 2008, during a VA PTSD examination, the examiner noted that the Veteran reported a number of symptoms that qualified for a TBI, including, in part, headaches, dizziness, weakness, paralysis, vertigo, sleep disturbance, fatigue and vision problems. He also noted that the Veteran had a combination of symptoms from his PTSD and TBI and that he was focusing on the PTSD only. In doing so, he considered the Veteran's sleeping disturbances and some impairment in thought processes, but not his headaches or most of his reported cognitive deficits in conjunction with the PTSD. In sum, the Veteran's headaches and cognitive deficits, recently attributed to a TBI, and PTSD result from one of the same in- service injuries/incidents (in-service motor vehicle accident and concussion) and, although some of the emotional and behavioral symptoms associated with the TBI and PTSD overlap, the Veteran's headaches and cognitive deficits are post-concussive in nature and therefore separate and distinct from his stressor-induced psychiatric disability. Inasmuch as the previously noted 70 percent evaluation does not contemplate those headaches or cognitive deficits, the criteria for entitlement to a separate rating therefor are met. The evidence in this case supports the Veteran's claim. ORDER A separate rating for residuals of a TBI is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. REMAND Under 38 U.S.C.A. § 5103A, VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. In this case, during the course of the appeal, the RO afforded the Veteran VA examinations in support of the remanded claim, but the reports of these examinations are inadequate to decide this claim. Therein, examiners either did not distinguish symptoms of the Veteran's PTSD/major depressive disorder from symptoms of his TBI, or, without providing rationale, noted that it would be merely speculative to do so. Given the Board's decision, discussed above, medical discussion is needed regarding the severity of the Veteran's headaches and other residuals of his cognitive disorder, which are not contemplated in the 70 percent evaluation assigned the Veteran's PTSD and major depressive disorder. In addition, during the course of this appeal, the Veteran asserted that he had visual disturbances as a result of his in- service concussions, now attributed to a TBI. In June 2005, he underwent a VA eye examination, during which an examiner noted partial ptosis of the left upper eyelid, which he could not explain, but indicated might be due to a concussion or other neurologic condition. Thereafter, during the TBI/polytrauma consultation conducted in October 2008 , a physician recommended an optometry consultation based on the visual complaints. Such a consultation is necessary to determine the nature and severity of all residuals of the Veteran's TBI. This case is REMANDED for the following action: 1. Arrange for the Veteran to undergo VA neurological and eye examinations by appropriate specialists in support of his claim. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed: a) record in detail the Veteran's reported history of residuals of his in-service concussions, now attributed to a TBI; b) excluding all residuals already attributed to the Veteran's PTSD and major depressive disorder and for which the Veteran is receiving compensation, objectively confirm those that exist, including, if appropriate, headaches, cognitive deficits and visuals disturbances, including muscle spasm, tics or other eye abnormalities; c) describe in detail the nature and severity of each cognitive/neurological deficit and visual disturbance; d) provide detailed rationale, with specific references to the record, for the opinions expressed; and e) if an opinion cannot be expressed without resort to speculation, discuss why such is the case. 2. Readjudicate the claim being remanded based on all of the evidence of record. Consider the appropriate evaluation(s) to be assigned residuals of the Veteran's TBI. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative a supplemental statement of the case. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. The Veteran need not act unless he receives further notice. He does, however, have the right to submit additional evidence and argument on the remanded claim. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that this claim be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _____________________________________________ N. Rippel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs