Citation Nr: 1211634 Decision Date: 03/30/12 Archive Date: 04/05/12 DOCKET NO. 06-33 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a disability rating of 30 percent for headaches with photophobia before October 20, 2010. 2. Entitlement to a disability rating of 40 percent for traumatic brain injury before October 20, 2010. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 2001 to August 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2006 of Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for cognitive disorder with headaches and slurred speech due to head injury and assigned a 10 percent rating, effective the day following separation from service, August 14, 2005. In September 2010, the Board remanded the claim for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). On appeal after the Board's remand, in a rating decision in May 2011, the RO recharacterized the disability as traumatic brain injury and assigned separate ratings as follows: Headaches due to head injury with photophobia under Diagnostic Code 8100: 10 percent from August 15, 2005, and 30 percent from October 20, 2010. Traumatic brain injury under Diagnostic Code 8045: 10 percent from October 23, 2008, and 40 percent from October 20, 2010. Slurred speech due to head injury under Diagnostic Code 6516: 10 percent from August 14, 2005. In December 2011, the Board asked the Veteran to clarify the issues on appeal. In January 2012, the Veteran stated that he was satisfied with the current disability ratings, but wished to appeal the effective dates for the ratings. He asserts the ratings should be effective from August 14, 2005. As for the rating for headaches with photophobia under Diagnostic Code 8100, the Veteran has a 10 percent from August 15, 2005, and 30 percent from October 20, 2010. As the Veteran stated that he was satisfied with the current 30 percent rating, the Board has framed the issue as entitlement to a 30 percent rating before October 20, 2010, which addresses the question of the effective date of the 30 percent rating. As for the rating for traumatic brain injury under Diagnostic Code 8045, the Veteran has a 10 percent from October 23, 2008, and 40 percent from October 20, 2010. As the Veteran stated that he was satisfied with the current 40 percent rating, the Board has framed the issue as entitlement to a 40 percent before October 20, 2010, which addresses the question of the effective date of the 40 percent rating. As the rating for slurred speech due to head injury under Diagnostic Code 6516 is effective August 14, 2005, and as the Veteran stated that he was satisfied with the current rating, the Board deems the appeal to this extent is withdrawn as there remains no factual or legal issue to address on appeal. FINDINGS OF FACT 1. From August 15, 2005, headaches with photophobia have been characterized by prostrating attacks occurring on average twice a week. 2. Before October 23, 2008, the residuals of traumatic brain injury were productive of various symptoms, such as headaches and mild cognitive impairment, but not of multi-infarct dementia. 3. From October 23, 2008, the residuals of a traumatic brain injury have been productive of the criteria for a 40 percent rating. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for headaches with photophobia from August 14, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2011). 2. Before October 23, 2008, the criteria for a compensable rating for residuals of a traumatic brain injury had not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 1155, 4.124a, Diagnostic Codes 8045, 9304 (2004-2008). 3. From October 23, 2008, the criteria for a 40 percent rating for residuals of traumatic brain injury have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. § § 1155, 4.124a, Diagnostic Code 8045 (2009-2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by a letter, dated in January 2005, on the underlying claim for service connection. Where, as here, service connection has been granted and the initial disability ratings have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision regarding the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's service treatment records as well as VA and private medical records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. The Veteran was afforded VA examinations in January 2005 and in October 2010. As the examinations contain the Veteran's medical history, findings, and an opinion with a rationale to support the conclusion reached in the opinion, the Board finds that the reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, staged ratings were assigned by the RO. However, upon review of the evidence, the Board will assign a single disability rating for each disability throughout the appeals period, with the exception of the traumatic brain injury prior to October 23, 2008, the date the rating criteria for Diagnostic Code 8045 were amended. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, the Veteran may be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Traumatic brain injury was previously rated under Diagnostic Code 8045, which provided that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. will be rated under the diagnostic codes specifically dealing with such disabilities. Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were rated 10 percent and no more under Diagnostic Code 9304. The 10 percent rating was not to be combined with any other rating for a disability due to brain trauma. Ratings higher than 10 percent for brain disease due to trauma under Diagnostic Code 9304 were 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 (2008). The criteria for evaluating traumatic brain injuries were revised during the course of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for the revisions is October 23, 2008. 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a Veteran is to be rated under the old criteria for any periods prior to October 23, 2008, and is to be rated under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). In this instance, one of the manifestations of the Veteran's traumatic brain injury is migraine headaches, which are rated under Diagnostic Code 8100. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. As noted, the Diagnostic Criteria with respect to traumatic brain injuries were revised effective October 23, 2008. The amended regulation provides for the evaluation of traumatic brain injury with the 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. Cognitive impairment should be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI [Traumatic Brain Injury] Not Otherwise Classified." 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2011). 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, 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. Id. Emotional/behavioral dysfunction is evaluated under § 4.130 (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." Id. 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. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI 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." 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. Id. Facts While in service, the Veteran was a restrained driver in a vehicle accident and he sustained a severe head injury. He suffered a left parietal skull fracture with contusion of the left parietal lobe which required surgery. While in service, the Veteran was diagnosed with dementia due to head injury in November 2002 and given two limited duty assignments. He returned to full duty in March 2004 as a computer specialist working aboard the U.S.S. Cleveland. In October 2004, the Veteran underwent a neuropsychological evaluation in preparation for a medical review board. At that time, he reported almost daily headaches, sometimes accompanied by nausea. The headaches resulted in diminished concentration and were best relieved by painkillers and lying down in a dark room. The Veteran also complained of fatigue and occasional dizziness, ongoing problems with short-term memory loss, slurred speech, and some increased irritability. He required more sleep than prior to the accident, but did not have sleep disturbances or problems with appetite, vision, hearing, or mood. Neuropsychological testing showed mild difficulty with divided attention and working memory, problems with verbal recall after delay, mildly impaired verbal learning, mild to moderate difficulty with word recognition, difficulty discriminating relevant from irrelevant information in recall, and moderate word-finding difficulty. The Veteran reported that he was able to perform his duties despite the impairments, in part through the use of compensatory strategies such as writing notes and asking for repetition of information. However, the examining physician noted that if the Veteran were placed in a work situation where the use of the compensatory measures was not possible, there was a possibility for disastrous consequences. The Veteran was subsequently granted a medical discharge from the Navy. In January 2005 on VA examination prior to service separation, the Veteran complained of continuing posttraumatic migraine headaches with light and sound sensitivity and nausea, which occurred about twice a week and when the headaches were severe enough he had to lie down in a dark room. He also reported ongoing problems with slower mentation, difficulty learning new information, short-term memory loss, and slurred speech. The examiner noted the results of the October 2004 neuropsychiatric testing and the need for the Veteran to use compensatory strategies to deal with cognitive issues such as short term memory loss. On clinical testing, the Veteran exhibited mild cognitive deficiencies, but no particular psychiatric reaction. In October 2010 on VA examination, the examiner noted the Veteran's history of moderately severe traumatic brain injury. The Veteran reported recurring headaches since the accident with several headaches a week. The headaches were usually not associated with nausea or vomiting, but were often accompanied by sensitivity to light and sound resulting in incapacity for as much as 10 out of every 30 days. The Veteran stated that he treated the headaches by lying down in a quiet dark room and taking Ibuprofen, often putting a towel over his forehead and trying to sleep. It was noted that headaches were often accompanied by dizziness as often as once a month, although of a mild variety and lasting only a very short time. It was noted too that the Veteran required eight hours of sleep a night in order to prevent a full day of headaches, and increased fatigue usually induced a headache. The Veteran complained of mood swings, lasting about a day, and increased negativity and irritability since his accident. He had mild memory impairment, decreased attention, difficulty concentrating, and difficulty with executive functioning, goal-setting, planning, organizing, and prioritizing. He reported hypersensitivity to light and sound which often triggered his migraines and he had verbal slurring which increased with fatigue. Despite his migraines and fatigue, the Veteran reported minimal time lost from his work. On physical examination the Veteran exhibited some motor retardation, decreased sensation in the lower extremities, but no muscle atrophy or gait abnormalities. Neuropsychiatric testing showed mild impairment of memory, attention, concentration, and executive functions, moderately impaired judgment, frequently inappropriate social interaction, occasional disorientation, and moderately impaired visual spatial orientation. His motor activity was normal, but he had three or more subjective symptoms which moderately interfered with work and one or more behavioral effects that occasionally interfered with interactions with others. Analysis The evidence set forth above demonstrates that the Veteran suffered a traumatic brain injury in service and that he has complications of the brain injury. In comparing the symptoms described in the evaluation in October 2004 in service and the report of VA examination in October 2010, the residuals of the brain injury have been consistent over time. Headaches with Photophobia As for the headaches, the headaches are productive of prostrating attacks occurring two or three times per week over the entire period of the appeal, which is consistent with a 30 percent rating. Therefore, the Board finds that the criteria for a 30 percent from the date of service connection, August 14, 2005, have been met. As noted earlier, the Veteran is not seeking a rating higher than 30 percent, which is his right. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may express intent to limit the appeal to a specific disability rating). Traumatic Brain Injury As for residuals of traumatic brain injury, the Board finds that the symptoms have likewise been consistent throughout the entire period of the appeal. However, the regulatory structure for rating traumatic brain injuries was significantly changed during the course of the appeal. Prior to October 23, 2008, as explained above, a disability rating higher than 10 percent was not assignable where the symptoms were purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, unless there was a diagnosis of multi-infarct dementia associated with brain trauma. In the Veteran's case, there is no such a diagnosis and the criteria for a rating higher than the already assigned 10 rating for headaches were not met before October 23, 2008. To rate headaches again would be pyramiding. The revised rating criteria, effective October 23, 2008, provided a basis for assessing symptomatology which was more favorable to the Veteran's disability picture. The revised criteria allowed for a rating for purely subjective symptoms, such as headaches, as well as a separate or additional rating based on the three areas of potential dysfunction due to traumatic brain injury: cognitive, emotional/behavioral, and physical. A review of the medical evidence shows that the Veteran's cognitive symptoms have been consistent since service separation, namely, mild to moderate impairment in cognition, short-term memory, concentration, verbal skills, and executive functioning. The rating criteria for traumatic brain injury is incredibly detailed and complex and, in light of the Veteran's expressed satisfaction with the currently assigned 40 percent disability rating, will not be recited here. Rather, the Board notes the consistently described disability picture is congruent with the rating assigned. As such, a 40 percent disability rating as of the effective date of the revised rating criteria, October 23, 2008, is warranted based on the evidence. As noted earlier, the Veteran is not seeking a rating higher than 40 percent, which is his right. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may express intent to limit the appeal to a specific disability rating). Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria reasonably describe the level and symptomatology of the Veteran's service-connected disabilities and provide for higher ratings for more severe symptoms. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. As the disability pictures are encompassed by the Rating Schedule, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A 30 percent rating for headaches with photophobia from August 14, 2005, is granted, subject to the laws and provisions governing the award of monetary benefits. A compensable rating for traumatic brain injury before October 23, 2008, is denied. A 40 percent rating for traumatic brain injury from October 23, 2008, is granted, subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs