Citation Nr: 1314406	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  09-25 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an evaluation for traumatic encephalopathy, in excess of 10 percent disabling before September 10, 2012, and in excess of 40 percent thereafter.

4.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from May 1955 to June 1976.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied the service connection and increased evaluation claims on appeal.

When the service connection and increased evaluation issues were previously before the Board in August 2012, they were remanded for additional development.  A January 2013 rating decision assigned a 40 percent evaluation for traumatic encephalopathy, effective September 10, 2012.  This issue is now before the Board for final appellate consideration.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of service connection for bilateral hearing loss, service connection for tinnitus, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The competent medical, and competent and credible lay, evidence of record shows that throughout the appeal period the Veteran's traumatic encephalopathy has been manifested by symptoms which satisfy the criteria for impairment level 2 for one facet of cognitive impairment, but do not satisfy the criteria for impairment of level 3 or greater in any facet. 


CONCLUSIONS OF LAW

1.  The criteria for a 40 percent evaluation for traumatic encephalopathy before September 10, 2012, have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012).

2.  The criteria for an evaluation in excess of 40 percent for traumatic encephalopathy at any time during the appeal period have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (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.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.

In correspondence dated in July 2008, VA informed the appellant of what evidence was required to substantiate his claim, and his and VA's respective duties for obtaining evidence.  It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman.

The VCAA requirement is generic notice, that is, 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, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision.  Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini.  The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices.

The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).  The Board finds that the VCAA notice requirements have been met in this case.

Duty to Assist

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, the transcript of a September 2009 Decision Review Officer (DRO) hearing, and the transcript of a June 2012 hearing before the undersigned Veterans Law Judge.  The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record.  

VA examinations were conducted in February 2010 and September 2012.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations conducted in this case are more than adequate, as they reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for the opinions offered.  The examiners considered the Veteran's medical history, including his lay reports of his symptomatology; described the Veteran's disability in sufficient detail; and fully described the functional effects caused by the Veteran's disability.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991).  

As addressed below, the September 2012 VA examination also complied with the Board's August 2012 remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to issue on appeal has been met.  38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.

Legal Analysis

With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.

The Veteran's disability is evaluated under Diagnostic Code 8045 for residuals of traumatic brain injury (TBI).  

The rating system for residuals of TBI is particularly complex.  For clarity and brevity, the Board shall focus its discussion on those sections and evidence which are relevant to the Veteran's claim.  Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from traumatic brain injuries and have profound effects on functioning: cognitive, which is common in varying degrees after a traumatic brain injury, emotional/behavioral, and physical.  Each of the areas of dysfunction may require evaluation.  

With regard to physical dysfunction, claims for service connection for tinnitus and bilateral hearing loss are being remanded below for additional development.  In addition, and as discussed below, there is no competent evidence of record that the Veteran's TBI causes motor and sensory dysfunction; visual impairment; loss of sense of smell and taste; seizures; gait, coordination, or balance problems; speech or other communication difficulties; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; or endocrine dysfunctions.  Accordingly, the Board finds that evaluation of physical dysfunction is not relevant to the Veteran's claim. 

Emotional/behavioral dysfunction resulting from TBI is to be rated under the same schedule for mental disorders.  In this case, the Veteran does not contend, and there is no evidence that, his service-connected TBI results in emotional/behavioral dysfunction.  Accordingly, the Board finds that evaluation of emotional/behavioral dysfunction is not relevant to the Veteran's claim.

As a result, the Board shall restrict its discussion and analysis on this issue to the Veteran's cognitive dysfunction.

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 an individual with cognitive impairment, and some functions may be affected more severely than others.  In an 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 Traumatic Brain Injury Not Otherwise Classified (Cognitive Impairment Table). 

Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction.  Subjective symptoms that are residuals of a traumatic brain injury are to be evaluated, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the Cognitive Impairment Table.  However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, is to be separately rated, even if that diagnosis is based on subjective symptoms, rather than under the Cognitive Impairment Table.

The Cognitive Impairment Table contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms.  It provides criteria for levels of impairment for each facet, ranging from 0 to 3, 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, since any level of impaired consciousness would be totally disabling.  A 100 percent rating is to be 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 so that level 0 warrants a 0 percent rating.  Level 1 warrants a 10 percent rating.  Level 2 warrants a 40 percent rating.  Level 3 warrants a 70 percent rating.  Therefore, a 70 percent rating is assigned if 3 is the highest level of evaluation for any facet.  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.  Diagnostic Code 8045, Note (2).

In this case, the January 2013 rating decision assigned a 40 percent rating for the Veteran's traumatic encephalopathy, effective September 10, 2012 (the date of the VA examination that the rating decision found to be the earliest evidence supporting the 40 percent evaluation).  The rating decision found that the Veteran had cognitive impairment that met the criteria for level 2 impairment in the memory, attention, concentration, executive function facet.  

The rating decision was based on the report of a September 2012 VA TBI examination that specifically described the Veteran's cognitive TBI symptoms according to the Cognitive Impairment Table.  The examination found that the Veteran met the criteria for level 2 impairment in the memory, attention, concentration, executive function facet.  The examination found that the Veteran met the criteria for level 0 impairment for all remaining facets.  Similarly, the February 2010 VA TBI examination also found that the Veteran met the criteria for level 0 impairment for all remaining facets.

Based on a review of the record, the Board finds that the Veteran warrants a 40 percent evaluation for traumatic encephalopathy prior to September 10, 2012.  Evidence dated before September 10, 2012, reflects level 2 impairment in the memory, attention, concentration, executive function facet.  

In so finding, the Board recognizes that the February 2010 VA examination found that the Veteran only had level 1 impairment in the memory, attention, concentration, executive function facet.  Nevertheless, the February 2010 report objectively identifies the same symptoms later described in the September 2012 VA examination report: mild memory impairment and difficulty concentrating.  

Moreover, before September 2012 the Veteran himself credibly described the same symptoms described in the September 2012 report.  On a July 2009 VA Form 9, he stated that he had deteriorating [cognitive] changes.  During the June 2012 Board hearing, he described poor memory and concentration during his final employment as an aviation monitor.  

The February 2010 VA examination report and the Veteran's own written and oral assertions also reflect that his traumatic encephalopathy symptoms and complaints have remained consistent over time.  As noted above, the September 2012 VA examination report is "objective" evidence (as required for level 2 impairment) that the Veteran's symptoms and complaints represent level 2 impairment.  As these symptoms and complaints have existed to the same degree throughout the appeal period, the September 2012 VA examination report is in fact objective evidence of level 2 impairment during the entire appeal period.  

Turning to an evaluation in excess of 40 percent, the Board finds that the preponderance of the evidence is against such an evaluation.  As noted above, the evidence of record shows that the Veteran's traumatic encephalopathy does not result in more than level 2 impairment in the memory, attention, concentration, executive function facet.  The evidence of record also shows that the Veteran's traumatic encephalopathy met the criteria for level 0 impairment in all remaining facets.

The Board's August 2012 remand requested that the VA examiner identify all symptoms caused by, and all disabilities aggravated by, the Veteran's traumatic encephalopathy, to include any loss of vision, severe right eye pain and ocular headaches.  

The September 2012 VA examination report satisfied the remand instructions.  It included a Disability Benefits Questionnaire (DBQ) for headaches.  The VA examination found that the Veteran's migraines and visual events were not related to his traumatic encephalopathy (as did the February 2010 VA examination).  It explained that they began only in the last several years (2005).  The Veteran's right ocular pain on awakening was likely secondary to the migraines.  On examination, his visual spatial orientation facet was normal and his subjective symptom facet included no visual impairment.  

The September 2012 VA examination found that the Veteran did have a history of post-traumatic or tension type headaches on the left since the TBI in 1968.  These occurred almost daily but were not prostrating.  The examination found that these headaches satisfied the criteria for level 0 impairment for the subjective symptom facet.  

The Board is aware of the Veteran's assertions in support of his claim.  As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  However, the observable symptoms the Veteran describes simply do not satisfy the criteria for an evaluation in excess of 40 percent evaluation.  As noted above, there are no clinical findings congruent with a higher evaluation.

Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability.  The discussion above reflects that the symptoms of the Veteran's traumatic encephalopathy are contemplated by the applicable rating criteria.  The competent medical evidence of record shows that the Veteran's traumatic encephalopathy most affects his memory, attention, concentration and executive functions.  Diagnostic Code 8045 provides a rating based on impairment of memory, attention, concentration and executive functions.  Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral for extraschedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111 (2008).

In sum, the evidence shows that the Veteran is entitled to a 40 percent evaluation for traumatic encephalopathy before September 10, 2012.  The preponderance of the evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 40 percent for traumatic encephalopathy at any time during the appeal period.  Thus, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

A 40 percent evaluation for traumatic encephalopathy before September 10, 2012, is granted, subject to the rules and regulations governing the award of monetary benefits. 

An evaluation in excess of 40 percent for traumatic encephalopathy at any time during the appeal period is denied.


REMAND

A preliminary review of the claims file indicates that the Veteran's claims for service connection for bilateral hearing loss and tinnitus require additional development.  

During the June 2012 Board hearing, the Veteran described poor memory and concentration during his final employment that prevented him from doing his job as an aviation monitor.  This testimony raises the issue of entitlement to a TDIU.  Although raised by the record, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  In Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), the Court held that when entitlement to TDIU is raised during the adjudicatory process of an underlying disability or during the appeal of the rating assigned for that disability, it is part of the claim for benefits for the underlying disability.  This issue has not been adjudicated by the RO, and as such, has not been developed for appellate consideration.  Pursuant to Rice, it must be remanded to the RO for adjudication. 

With respect to the Veteran's hearing loss claim, a September 2012 VA hearing loss and tinnitus examination found bilateral hearing loss for VA purposes.  The corresponding report provides the opinion that the Veteran's hearing loss was not at least as less likely as not caused by or a result of an event in military service.  The examiner explained that the Veteran's 1976 separation examination showed hearing sensitivity to be within normal limits through 8000 Hz with no worsening of hearing shown during his service time.  

The Board points out that the absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The report of the September 2012 VA hearing loss and tinnitus examination also provides the opinion that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure.  As a rationale, the examiner referred to the rationale for the hearing loss opinion.  However, the rationale for the hearing loss opinion is inconsistent with the cited Court decisions and thus it cannot be a rationale for the negative tinnitus opinion.  


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) (2012).  Expedited handling is requested.)

1.  Provide the Veteran and his representative a letter that notifies him of the information and evidence required for a TDIU.  Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate his claim for a TDIU, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA.

2.  Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any bilateral hearing loss disability and tinnitus that may be present.  The claims file must be made available to the examiner.

Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine: (1) whether it is at least as likely as not (50 percent or more likelihood) that any current hearing loss disability was caused by the Veteran's active duty; and (2) whether it is at least as likely as not (50 percent or more likelihood) that any current tinnitus was caused by the Veteran's active duty.  

The Board advises the examiner that the absence of in-service evidence of a hearing loss during service is not always fatal to a service connection claim.  See Ledford, supra.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  See Hensley, supra.

The examiner is requested to provide a rationale for any opinion expressed. 

3.  Then, readjudicate the Veteran's service connection claims.  If either benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

4.  Then, adjudicate the issue of entitlement to a TDIU.  Notice of the determination and the Veteran's appellate rights should be provided to the Veteran and his representative.  If the benefit sought is denied, the Veteran and his representative should be provided a statement of the case and afforded an appropriate period to respond.  The case should be returned to the Board for appellate review.

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).



______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs