Citation Nr: 1309033 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-34 721 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for memory loss due to traumatic brain injury (TBI). 2. Entitlement to an effective date earlier than January 22, 2010, for the grant of a 30 percent rating for service-connected headaches. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1990 to February 1994 and from March 2008 to March 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for headaches and memory loss due to TBI, with an initial 10 percent rating assigned, effective March 29, 2009. By a December 2009 rating decision, a separate rating of 10 percent was assigned for headaches, effective March 29, 2009. The Veteran properly appealed that decision and in January 2011, the RO granted an increased rating of 30 percent for headaches, effective January 22, 2010. In February 2011, the Veteran, through his representative, stated that he was satisfied with the rating assigned and wished to withdraw the claim for a higher rating for headaches from his appeal. As such, the Board will address the remaining residual specifically addressed in the appeal, namely the memory loss associated with TBI. In an April 2011 Form 646, the Veteran's representative stated that he disagreed with the effective date assigned for the 30 percent rating for headaches. As explained below, a statement of the case has not been issued following that notice of disagreement, so the issue must be remanded for further action. In February 2013, the Veteran submitted a waiver of local jurisdiction in regard to evidence he submitted directly to the Board following the last adjudication of the claim by the RO. The Board has accepted this additional evidence for inclusion into the record on appeal. (The issue of entitlement to an effective date earlier than January 22, 2010, for the 30 percent rating assigned for service-connected headaches is addressed in the remand that follows the decision below.) FINDING OF FACT Throughout the claim period, there has been objective evidence of moderate impairment of memory. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no more, for memory loss due to TBI have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.21, 4.124a, Diagnostic Code 8045 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA treatment records, and private medical records. Additionally, the Veteran was provided a VA TBI examination in April 2011 to evaluate the severity of service-connected memory loss. That examination is adequate as it contains all of the findings necessary for evaluating the disability and considered the Veteran's reports. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). 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.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's memory loss due to TBI has been rated under Diagnostic Code 8045. He contends that he is entitled to a higher disability rating as he experiences more severe cognitive impairment than that associated with a 10 percent disability rating. Diagnostic Code 8045 provides that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). The Veteran has already been assigned separate compensable ratings for emotional/behavioral and physical residuals associated with TBI, including headaches, cervical and lumbar spine disabilities, and an acquired psychiatric disability. As noted above, the rating for memory loss due to TBI was appealed and the claim regarding a rating for headaches was withdrawn. (The Board notes that a separate rating for psychiatric disability has also been awarded; however, the RO has explicitly indicated that the rating for psychiatric disability did not contemplate memory loss. Consequently, the Board will accede to the RO's delineation of the issues and focus on the cognitive difficulties, which has not been considered as part of the rating for psychiatric disability.) 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 is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. 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 are evaluated, whether or not they are part of cognitive impairment, under the subjective symptoms facet under the same table as cognitive impairment. However, residuals with a distinct diagnosis 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 same table as cognitive impairment as well. Id. 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 zero to three, 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," because any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage rating is assigned based on the level of the highest facet as follows: zero equals a noncompensable rating; a one equates to a 10 percent; a two equates to a 40 percent; and a three equates to a 70 percent. For example, a 70 percent rating is assigned if three is the highest level of evaluation for any facet. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). Note (1) explains that 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 co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, only one rating is assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned 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, a separate rating is assigned for each condition. Id, Note (1). (As noted above, the RO has specifically indicated that its rating for a mental disease did not contemplate the memory (cognitive) impairment used to rate under Diagnostic Code 8045.) The 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. Id, Note (2). "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. Id, Note (3). Finally, 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. Id, Note (4). The Veteran's cognitive impairment was evaluated several times throughout the appeal. In April 2009, the Veteran received a VA TBI consultation where a physician described the in-service injury and evaluated his current symptoms. Under the category of neurobehavioral symptoms, the physician described the symptoms of irritability and poor frustration tolerance as severe, stating that the Veteran was easily annoyed and easily felt overwhelmed by things. Among the moderate impairments were the symptoms of poor concentration, forgetfulness, and fatigue. It was noted that he could not pay attention or remember things, experienced a loss of energy, and was getting tired easily. A June 2010 VA examination focused on the Veteran's headaches. However, he did continue to report memory issues, which he stated began at the time of his head injury. The Veteran received a VA TBI examination in April 2011. He described memory and cognitive impairment due to decreased attention and difficulty concentrating, which the examiner found to be mild. The examiner also found the Veteran's judgment to be normal, social interaction to be routinely appropriate, motor activity and visual spatial orientation to be normal, and that he was always oriented to person, time, place, and situation. His subjective symptoms and neurobehavioral effects were not considered to interfere with work, instrumental activities of daily living, or social interactions. He was able to communicate and comprehend spoken and written language and his consciousness was also normal. The Virtual VA system reveals that the Veteran underwent a VA examination in September 2012, where he reported that he experienced confusion, slowness of thought, problems with attention/concentration, difficulty understanding directions, constant fatigue, and intermittent irritability. He also reported problems with reading such that he sometimes forgets what he had previously read. The examiner stated that he had a moderate memory problem which affected his short-term memory. During the Board hearing, the Veteran described difficulty concentrating, slow or delayed thinking, problems getting things organized, difficulty finishing tasks, and irritability or easily getting frustrated. He also reported that he continued to experience memory issues. As an example, he said that if he parked in a garage and did not write down the location of his car, he would not be able to remember it when he returned and would have to wander around the garage until he found it. The Veteran reported that he thought his TBI symptoms would ultimately lead to his termination from his current job. He specifically said that while his boss was trying to be understanding, it was a problem that he could not remember things on the job. In evaluating the Veteran's disability, the Board notes that under Diagnostic Code 8045, the highest rated facet under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will represent the disability rating assigned. The Board finds that the evidence of record, when taken as a whole, reveals evidence of moderate loss of memory, attention, concentration, or executive functions. As this is described as a "three" on the cognitive impairment table, the assignment of a 70 percent rating for the period on appeal is warranted. Throughout the appeal, the Veteran has described impairment of his memory, attention, and concentration, as well as the speed of his thinking, his ability to make decisions, and his ability to follow and understand directions. Both the April 2009 and September 2011 examiners specifically described the Veteran's memory impairment as moderate and April 2009 examiner also described moderate difficulty with concentration and slowed thinking. At the hearing, the Veteran described how his symptoms have persisted and, in the Board's estimation, described moderate impairment in his memory. The record does not support a finding of severe impairment in memory, attention, concentration, or executive functions or total impairment under the relevant table. Neither a physician, nor the Veteran has described his impairment of memory, attention, concentration, or other executive functions as severe. Indeed, during the Board hearing, the Veteran and his representative did not specifically argue for a total rating based on cognitive dysfunction. The Board acknowledges that his irritability and frustration tolerance were described as severe by the April 2009 physician. However, at no other point has a physician described any symptoms as severe. At no point has the Veteran associated those symptoms with his memory, attention, concentration, or executive function impairment. During the Board hearing, he gave driving as an example of a trigger for his irritability and frustration rather than an executive function such as planning, organizing, or speed of thought. Moreover, he described his irritability as intermittent in April 2011. Therefore, the Board does not find his memory, attention, concentration, or executive function impairment to be severe. (Problems such as irritability are likely better characterized as symptomatic of psychiatric disease that has been rated separately in this case.) Moreover, there is no evidence of severely impaired judgment, consistent disorientation to two or more phases, or a persistently altered state of consciousness. Therefore, the evidence of record does not support a finding of total impairment under the relevant criteria. The Board also acknowledges that the April 2011 VA examination report found mild symptoms at best, but notes that symptoms can fluctuate over time. Given the description of the Veteran's memory impairment as moderate both before and after that examination, the Board finds that the Veteran's impairment more closely approximates a three on the relevant table and a 70 percent disability rating. Overall, there exists no basis under the schedular criteria for an increased rating in excess of 70 percent for service-connected TBI with memory loss. 38 C.F.R. §§ 4.3, 4.7 (2012). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2012), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran's memory loss and difficulties with attention, concentration, speed of thought, and ability to understand and follow directions. The rating criteria are based on impairment in cognitive functioning and specifically consider impairment in memory, attention, concentration, and executive functions such as thinking and following directions. 38 C.F.R. § 4.85. The rating criteria are, therefore, adequate to evaluate the Veteran's disability. Referral for consideration of extraschedular rating is, therefore, not warranted. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for a rating higher than 70 percent. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER A rating of 70 percent for memory loss due to TBI is granted. REMAND As noted above, a December 2009 rating decision granted a separate rating of 10 percent for headaches, effective March 29, 2009. The Veteran properly appealed that decision and in January 2011, the RO granted a rating of 30 percent, effective January 22, 2010. In February 2011, the Veteran, through his representative, stated that he was satisfied with the rating assigned and wished to withdraw the issue of a higher rating for headaches from his appeal. However, in an April 2011 Form 646, he stated that he disagreed with the effective date assigned for the 30 percent rating. A statement of the case has not been issued as it relates to this issue. The Board is required to remand the case for issuance of a statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to an effective date earlier than January 22, 2010, for the award of a 30 percent disability rating for service-connected headaches. (The issue should be returned to the Board only if a timely substantive appeal is received.) The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2002 & Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs