Citation Nr: 1111667 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 03-03 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of head trauma with headaches and nosebleeds, prior to December 18, 2001; 50 percent since December 18, 2001; and 70 percent since July 17, 2009. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esquire WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from January 1943 to January 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2002 by the Department of Veterans Affairs (VA) Little Rock, Arkansas, Regional Office (RO). Procedural History For historical purposes, it is noted that service connection was established for residuals of head trauma with headaches and nosebleeds by the RO in a May 1996 decision. The Veteran's residuals of head trauma were then rated 10 percent disabling under Diagnostic Code (DC) 8045-9304. In August 2001, the Veteran submitted an increased rating claim for this disability and the appealed February 2002 rating decision continued the 10 percent disability evaluation. In February 2006, the Board remanded the matter for further development, specifically to obtain additional treatment records and a VA examination and opinion. Subsequently, the Board issued a October 2006 decision denying the Veteran's claim based on findings from a March 2006 VA examination that there was no evidence the Veteran's diagnosed dementia was secondary to service connected residuals of the head trauma. In addition, the Board found there was no diagnosis of migraines. The Veteran appealed the Board's October 2006 determination to the United States Court of Appeals for Veterans Claims (Court), and in November 2008 the Court issued a memorandum decision vacating and remanding the Board's October 2006 decision for further adjudication. Specifically, the Court held the Board failed to provide adequate statement of the reasons or bases by considering factors other than the frequency and severity of the Veteran's headaches. The Board issued a decision in July 2009 again denying the Veteran's claim for an increased rating. Namely, the Board noted that the medical practitioners reported there was no evidence in this particular record to suggest a causal relationship between the in-service trauma and the current dementia; rather, the evidence indicated that the Veteran's dementia was "most consistent" with age-related dementia. In addition, the Board determined that application of DC 8100 was not appropriate, and a higher rating was not available under that diagnostic code, as the Veteran symptoms have been attributed to non-migraine (tension) headaches. The Veteran again appealed the Board's determination to the Court and in January 2010, a Joint Motion for Remand was granted. The Joint Motion for Remand determined the Board did not consider the revised rating criteria under Diagnostic 8045 and did not adequately discuss the possibility of a higher rating under Diagnostic Code 8100 by analogy. In April 2010, the Board issued another decision and remand pursuant to the Court's January 2010 directives. In this decision, the Board noted the regulations for the evaluation of brain disease due to trauma or traumatic brain injuries (TBI) were revised effective October 23, 2008. See 73 Fed. Reg. 54693 (Sept. 23, 2008). Although the revisions apply only to applications for benefits received by VA on or after October 23, 2008, (the older criteria will apply to applications received by VA before that date) the Veteran requested review under the revised criteria, and as such, his disability was reviewed under the new criteria (see 73 Fed. Reg. 54693). The Board also applied Diagnostic Code 8100 by analogy to the Veteran's headaches. Subsequently, the Board determined that prior to December 18, 2001, an evaluation in excess of 10 percent for the Veteran's residuals of a head trauma with headaches and nosebleeds was not warranted, but that a 50 percent rating for residuals of a head trauma with headaches and nosebleeds, since December 18, 2001, was warranted. In addition, as the evidence suggested that the Veteran's gait abnormality with stumbling and falling was secondary to his TBI, the Board remanded this matter for a new VA examination and opinion determining its nature and etiology. Another Joint Motion to Remand was submitted to the Court to partially vacate and remand the Board's April 2010 decision. The Veteran did not appeal the denial of entitlement to an evaluation in excess of 10 percent for his service connected residuals of trauma with headaches and nosebleed, prior to December 18, 2001. However, the Veteran argued that the Board's finding that he was entitled to no more than a 50 percent evaluation failed to consider additional dysfunctions under the revised Diagnosed Code 8045, to apparently include dizziness and tinnitus [the Board notes that the April 2010 decision remanded the matter for the RO to consider whether a separate evaluation was warranted for an abnormal gait as a residual of the head trauma; in addition, it is noted that tinnitus has been service-connected since 1949]. The Court granted the Joint Motion in June 2010. The Board notes that in July 2010, before the case was returned to the Board, a Decision Review Officer (DRO) from the RO issued a decision implementing the April 2010 Board decision (granting the 50 percent evaluation), and granted an increased rating of 70 percent for the service connected residuals of head trauma with headaches and nosebleeds, effective July 17, 2009. According to a brief submitted by the Veteran's attorney in February 2011, the Veteran was notified by a June 17, 2010 rating decision issued by the RO. Therefore, the Veteran is currently service connected for residuals of head trauma with headaches and nosebleeds at 70 percent evaluation, effective July 17, 2009; tinnitus at 10 percent evaluation, effective January 11, 1949; scar on nose at 10 percent evaluation, effective September 28, 1994; and defective hearing at a noncompensable evaluation, effective May 24, 1978. The Board notes that although the Veteran stated he was not appealing the 10 percent evaluation prior to December 18, 2001, a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for an increased rating for the residuals of head trauma with headaches and nosebleeds evaluated at 10 percent prior to December 18, 2001, remains on appeal before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND As stated above, in July 2010, the Veteran was granted an increased rating of 70 percent, effective July 17, 2009, by the DRO after the Court granted the Joint Motion partially vacating and remanding the Board's April 2010 decision. Nevertheless, the Board must still comply with the Court's June 2010 Order remanding this appeal for further development. Under the revised criteria associated with Diagnostic Code 8045 used to evaluate TBI, 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. 38 C.F.R. § 4.124a, DC 8045. The Veteran has argued that each of these areas of dysfunction, notably physical dysfunction, requires evaluation under an appropriate diagnostic code. According to Diagnostic Code 8054 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. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, 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 TBI Not Otherwise Classified." However, separately evaluate 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, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction 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." 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. 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. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: 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 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. 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. 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 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. 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. Note (5): A veteran whose residuals of TBI 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 CFR 3.114, if applicable. 38 C.F.R. § 4.124a, DC 8045 (effective October 23, 2008). A February 2010 VA examination found the Veteran suffered from tinnitus, intermittent dizziness, and other neurological difficulties. In addition, the Board notes that the issue of whether the Veteran's abnormal gait is related to this service connected residuals of head trauma with headaches and nosebleeds was remanded in April 2010. The Board notes that the evaluation of the same disability under various diagnoses is to be avoided. That is to say that the evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259 (1994). Therefore, a new VA examination to determine all cognitive, emotional/behavioral, and physical manifestations of residuals (including tinnitus, intermittent dizziness, abnormal gait, and other neurological difficulties) to the head trauma is necessary in order to give the Veteran every consideration with respect to the present appeal. As a final matter, the Board also points out that, as any decision with respect to the claim for service connection may affect the Veteran's claim for a TDIU, this claim is inextricably intertwined with the claim for service connection. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the issue of service connection for gait abnormality secondary to service connected head trauma is remanded, the Veteran's claim for TDIU must also be remanded pending the outcome of the issues of service connection. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Afford the Veteran for a VA examination with an appropriate examiner to determine the current level of impairment due to the service-connected residuals of head trauma with headaches and nosebleeds, as well as any other residuals of the traumatic brain injury. In evaluating the Veteran, the examiner should consider the three main areas of dysfunction listed in the revised rating criteria (see 38 C.F.R. § 4.124a (effective October 23, 2008)) that may have resulted from the Veteran's traumatic brain injury: cognitive, emotional/behavioral, and physical. If deemed necessary, additional evaluation in one or more of these areas of dysfunction should be obtained in order that there may be a complete picture of the Veteran's residuals of a traumatic brain injury including abnormal gait, tinnitus, intermitted dizziness, other neurological difficulties. A complete copy of this remand and the claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. A complete rationale for any opinion expressed must be included in the examination reports. 2. Thereafter, the RO should readjudicate the claim. The RO must consider whether separate ratings are warranted for the residuals identified on examination accordance with Esteban v. Brown, 6 Vet. App. 259 (1994) and 38 C.F.R. § 4.14 (2010). Moreover, the RO is reminded that it must make a determination as to whether entitlement to a separate evaluation for a gait abnormality (as a residual of head trauma), as well as entitlement to a TDIU may be granted. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case. The Veteran should be afforded an opportunity to respond before the case is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).