Citation Nr: 1309286 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 94-37 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic organic brain disease manifested by dementia and a posttraumatic headache disorder prior to October 23, 2008. 2. Entitlement to a rating in excess of 40 percent for traumatic brain injury (TBI) with vertigo, since October 23, 2008. 3. Entitlement to an initial rating in excess of 30 percent for migraine headaches associated with the TBI with vertigo, since October 23, 2008. 4. Entitlement to an initial rating in excess of 10 percent for bilateral tinnitus associated with the TBI with vertigo, since October 23, 2008. REPRESENTATION Appellant represented by: Daniel D. Wedemeyer, Attorney at Law ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to August 1967. He was awarded the Purple Heart Medal. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Los Angeles, California. In that rating decision, the RO awarded service connection for posttraumatic organic brain disease manifested by dementia and posttraumatic headache disorder, and assigned an initial evaluation of 10 percent, effective September 1, 1967. In May 2001, the Board remanded the claim, among others, in order to afford the Veteran a statement of the case. In May 2004, the RO increased the rating assigned to the Veteran's posttraumatic organic brain disease to 30 percent, effective September 1, 1967. In September 2004, the Board remanded the claim, among others, in order to provide the Veteran with proper notice in accordance with the Veterans Claims Assistance Act of 2000 (VCAA). In October 2007, the Board remanded the claim, among others, in order to obtain medical records. In March 2012, the Board adjudicated a number of claims. The claim at bar was the only issue not decided. It was remanded in order to afford the Veteran a VA medical examination. In June 2012, the RO issued a rating decision, implementing the Board's March 2012 decision. The RO also readjudicated the TBI claim at bar. In so doing, the RO terminated the 30 percent rating assigned for the Veteran's posttraumatic organic brain disease, effective October 23, 2008. In its place, the RO assigned three new, separate ratings. The RO assigned a 40 percent rating for TBI with vertigo, effective October 23, 2008, a 30 percent rating for migraine headaches associated with the TBI, effective October 23, 2008, and a 10 percent rating for tinnitus associated with the TBI, effective October 23, 2008. Initially, the Board notes applicable law provides that when a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran has not been assigned the maximum ratings possible for his disorders, the claims remain viable on appeal. The Board additionally acknowledges that the issues captioned above differ significantly from the single issue remanded by the Board in March 2012 (entitlement to an initial disability rating in excess of 30 percent for posttraumatic organic brain disease manifested by dementia and posttraumatic headache disorder). However, these revisions are necessary in light of the actions taken by the RO in the June 2012 rating decision. By way of background, during the pendency of the appeal, VA amended the criteria for rating residuals of traumatic brain injuries (TBIs), or more specifically, neurological and convulsive disorders, including under Diagnostic Code 8045. 73 Fed. Reg. 54,693, 54,708 (Sept. 23, 2008). This amendment applies to applications received by VA on and after October 23, 2008. The former criteria apply to applications received by VA before that date. A Veteran whose residuals of TBI VA rated under Diagnostic Code 8045 prior to the amendment, however, is permitted to request review under the amended criteria regardless of whether his disability has worsened since the last review or whether VA receives additional evidence. In the March 2012 remand, the Board specifically found that only the former rating criteria for rating TBIs applied in this case. The Board reached this finding because in the instant case, the Veteran's claim for posttraumatic organic brain disease manifested by dementia and a posttraumatic headache disorder was received many years prior to October 2008 and arose from the rating decision in September 1997. Additionally, the Veteran had not requested that his claim be reviewed under the amended criteria. As such, the Board determined that only the previous Diagnostic Code 8045 was applicable. However, as noted above, in June 2012 the RO readjudicated the claim and in so doing, applied the amended rating schedule. The RO terminated the old 30 percent rating assigned to the Veteran's disability, and assigned three new, separate ratings, as described above. While this was contrary to the findings made by the Board in March 2012, the RO's actions have not predjudiced the Veteran, and to the contrary, have afforded him a greater benefit as he is now in receipt of a higher rating for TBI, as well as two additional ratings. Moreover, the Board has considered whether the termination of the 30 percent rating under the former Diagnostic Code 8045 was improper, and finds it was not. In Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), the United States Court of Appeals for the Federal Circuit held that the switching of diagnostic codes based on a change in determination of the situs of a disability did not constitute the severing of service connection. In Read, the Federal Circuit also noted that severance of service connection essentially means that a particular disability previously determined to have been incurred in the line of duty was incurred otherwise. 651 F.3d at 1300. Here, the RO did not discontinue the Veteran's rating for TBI, but preserved it and afforded him a higher evaluation of 40 percent under the revised Diagnostic Code 8045. Therefore, the Board finds the situation in the Veteran's case analogous to that in Read, and that there was no improper severance in this case. In light of the RO's actions in the June 2012, and the Board's findings above, the matter on appeal has been recharacterized as reflected on the title page. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND While the Board regrets the additional delay in the adjudication of this matter, further development is necessary before the claims on appeal can be properly adjudicated. At the outset, given the complexity of the case and the recent actions taken by the RO in the June 2012 rating decision, the Board finds the Veteran should be provided with a notice letter describing both the new and former criteria for rating traumatic brain injuries, pursuant to 38 C.F.R. § 4.124a, DC 8045 (2012 & 2008). A remand is also necessary in order to obtain additional medical opinions. As noted above, in March 2012, the Board determined that a VA examination was necessary in order to assess the neurological disabilities associated with the Veteran's TBI. In June 2012, a VA examination was conducted. However, the examiner was not able to fully assess the residuals of the Veteran's TBI at the time of the examination. The examiner found, For my review of his records, I was not able to find a neuropsychological test battery being done, and this examiner recommends that neuropsychological testing be done to better characterize the severity of his cognitive impairment. Also, if imaging has not been done in the past, I also recommend that an MRI scan of the brain without contrast be performed. Neurological examination also shows that this Veteran has severe peripheral neuropathy of unknown etiology, probably not service-connected, and it is recommended that this Veteran be referred to neurology service for further workup of this condition. This peripheral neuropathy is causing the Veteran some imbalance and falls, which is probably not related to the lumbar disk disease and sciatica. Subsequent to the examination, the testing recommended by the examiner was not conducted. For claims received by VA prior to October 23, 2008, a Veteran is to be rated under the old criteria for any periods prior to that date, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. See 38 C.F.R. § 4.124, Note (5);VBA Fast Letter 8-36 (October 24, 2008). As applicable to this case, the Board must review the 40 percent rating for TBI with vertigo under either the old or new rating criteria, whichever are more favorable to the Veteran. The 30 percent rating assigned for TBI, effective from September 1967 to October 23, 2008, must be reviewed under only the old Diagnostic Code 8045. Revised Diagnostic Code 8045 indicates that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: (1) cognitive (which is common in varying degrees after TBI); (2) emotional/behavioral; and (3) physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). Cognitive impairment, which is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified (Cognitive Impairment Table)," 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. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Such symptoms are to be evaluated under the "subjective symptoms" facet of the Cognitive Impairment Table, whether or not they are part of cognitive impairment, unless the residuals carry a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease,. The Cognitive Impairment Table contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. These include (1) memory, attention, concentration, and executive functions; (2) judgment; (3) social interaction; (4) orientation; (5) motor activity (with intact motor and sensory system); (6) visual spatial orientation; (7) subjective symptoms; (8) neurobehavioral effects; (9) communication; and (10) consciousness. The table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a fifth level, the highest level of impairment, labeled "total." If no facet is evaluated as "total," the rater is to 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. Emotional and/or behavioral dysfunction is to be rated under 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders). Physical dysfunction includes, but is not limited to, 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. Such symptoms are to be rated under appropriate diagnostic codes. In order to properly rate the Veteran's TBI residuals under the amended rating criteria, the Board finds that current neuropsychological testing, an MRI scan of the brain without contrast, and a neurological examination assessing the peripheral neuropathy be conducted, and an addendum opinion be obtained, prior to the Board's adjudication. The June 2012 examiner's findings further raise the possibility of a higher rating based on neurological symptomatology for the portion of the appeal prior to October 23, 2008. Under the pre-amended criteria, purely subjective complaints such as headache, dizziness, insomnia, etc. recognized as symptomatic of brain trauma, were rated as 10 percent, but no more, under Diagnostic Code 9304 (dementia due to head trauma). 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). This rating could not be combined with any other rating for a disability due to head trauma. A rating in excess of 10 percent was not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, were rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code. As described above, June 2012 examiner indicated that the Veteran has severe peripheral neuropathy, causing imbalance and falls, which is probably not related to his back disability, and which appears related to his TBI. The record shows evidence of peripheral neuropathy of the legs prior to October 23, 2008. For example, on VA examination in October 1993, the Veteran complained of numbness of the left foot. He was diagnosed with left foot numbness and left leg paresthesia. In a February 2000 VA treatment record, the Veteran was diagnosed with peripheral neuropathy. On VA neurological examination in May 2003, he was diagnosed with peripheral neuropathy of unknown etiology. The Veteran has reported problems with imbalance since his injury. On remand, the examiner should opine on whether neurological manifestations of his TBI prior to October 23 2008 included peripheral neuropathy of the legs. Care should be taken to distinguish neurological symptomatology associated with the TBI from his already service-connected lumbar spine-related radiculopathy of the bilateral legs, to the extent possible. Additionally, as found by the Board in March 2012, the record shows that the Veteran has complained of severe headaches since separation from service. Pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, a higher rating of 50 percent is available with evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, in the March 2012 remand, the examiner was asked to determine if the Veteran's the Veteran has migraine headaches due to his TBI, and if so, whether they are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. If there was a diagnosis of migraine headaches, after reviewing the claims folder and examining the Veteran, to the extent possible the examiner was asked to determine the onset of the migraine headaches. The June 2012 VA examiner did not render an opinion in this regard. Stegall v. West, 11 Vet. App. 268 (1998). The June 2012 VA examiner found the Veteran currently suffers from prostrating headaches about four to five times per week, lasting an hour each time. Findings were not made regarding whether the headaches are productive of severe economic inadaptability, or regarding their onset. This information should again be requested before the claim is adjudicated by the Board. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice of both the old and new criteria contemplating residuals of TBI as described in 38 C.F.R. § 4.124a, DC 8045. 2. Afford the Veteran a VA examination, with a VA psychiatrist or psychologist, in order to administer a neuropsychological test battery, as indicated in the June 2012 VA examination report. 3. Afford the Veteran a brain MRI scan without contrast, as indicated in the June 2012 VA examination report. 4. Afford the Veteran a VA neurological examination to determine the purely neurological disabilities associated with his traumatic brain injury. Please note the Veteran is already separately service-connected for left ulnar neuropathy, and radiculopathy of the bilateral lower extremities associated with a lumbar spine disability. The claims folder, including all medical records obtained and a copy of this remand, should be reviewed by the examiner. If purely neurological disabilities are present, they should be identified along with their level of severity, to include motor or sensory deficit and functional loss should be described. The examiner should also respond to the following questions: a. Since October 23, 2008, have the Veteran's migraine headaches been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability? b. Is it is at least as likely as not (50 percent probability or greater) that prior to October 23, 2008, the Veteran suffered from migraine headaches due to his service-connected traumatic brain injury? If so, were they were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability? To the extent possible, the examiner is asked to determine the onset of the migraine headaches. c. Is it at least as likely as not that the Veteran currently suffers from peripheral neuropathy due to his service connected traumatic brain injury? If so, the examiner is asked to identify the nerves involved, and indicate whether the peripheral neuropathy is mild, moderate, or severe. d. Is it at least as likely as not that prior to October 23, 2008, the Veteran suffered from peripheral neuropathy due to his service connected traumatic brain injury? To the extent possible the examiner is asked to determine the onset of the peripheral neuropathy, identify the nerves involved, and indicate and whether it was mild, moderate, or severe. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. Thereafter, forward the claims file, to include the neuropsychological testing battery, the MRI of the brain without contrast, and the VA neurological examination report, as well as a copy of this REMAND, to the VA examiner who prepared the June 2012 TBI report for an addendum opinion. The examiner should comment as to the degree to which the service-connected residuals of a head injury is manifested by facets of cognitive impairment, including memory; attention; concentration; executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and, consciousness since October 23, 2008. In so doing, the examiner must specify which symptoms are attributable to the Veteran's TBI, and which symptoms are associated with another disability, and assign severity levels accordingly. Where it is not possible to distinguish which symptoms are attributable to the Veteran's TBI and which are attributable to nonservice-connected disabilities, the examiner must assume, for purposes of the examination, that any such symptom is related to the Veteran's service-connected TBI. The examiner should provide diagnoses of any other disability that is determined to be related to TBI (e.g., migraine headaches, neurological disorder, etc.). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. If the prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA TBI examination to obtain an opinion responsive to the questions posed hereinabove. All indicated tests should be accomplished, and all clinical findings reported in detail. 6. The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 7. After completing the examinations, the RO should review the examination reports to ensure they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 8. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant 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. 2012). _________________________________________________ CHERYL L. MASON 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) (2012).