Citation Nr: 1327309 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-19 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial compensable evaluation for residuals of a "cracked skull" with right zygoma trauma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION 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 Veteran had active service from June 1954 to October 1957. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board remanded the claim on appeal in February 2011 and in May 2012. Following a September 2011 rating decision which granted service connection for tinnitus and cold sensitivity residuals of an eye injury, the Veteran's representative submitted a November 2011 statement which expressed disagreement with the ratings assigned for both the tinnitus and the eye injury residuals. In February 2011 and in May 2012, the Board remanded these issues, directing that the Veteran be provided a statement of the case (SOC). An SOC addressing each of these claims was issued in March 2013. The claims files and electronic records (Virtual VA and VA's Appeals Control and Locator System (VACOLS)) disclose no evidence that the Veteran has submitted a timely substantive appeal regarding these initial evaluations. These issues are not before the Board for appellate review at this time. The Veteran testified at a hearing before the Board in September 2009. In May 2013, the Veteran was notified that he had a right to another hearing, because the individual designated to conduct the September 2009 hearing was no longer employed at the Board. The Veteran was advised that he should respond within 30 days if he wished to testify at another hearing before the Board. The claims files and electronic records (Virtual VA and VA's Appeals Control and Locator System (VACOLS)) disclose no evidence that the Veteran has responded to the May 2013 letter. Therefore, appellate review may proceed. In his initial October 2005 claim, the Veteran stated he was seeking service connection for "right eye," which was hit by a marlin spike, resulting in a "cracked skull/stitches under & over eye." In a February 2009 statement, the Veteran stated that the VA Medical Center had confirmed that he had "lazy eye lid syndrome" and that his eye sight was not improving, but was worsening. At his hearing, the Veteran stated that he required eye drops for "lazy eye." The RO interpreted the Veteran's claim for service connection for a right eye injury as limited to cold sensitivity residuals, and granted the claim, assigning a 10 percent evaluation. To the extent that the Veteran intended to seek service connection for a scar over the eye, a scar under the eye, lazy eye lid syndrome, "lazy" or dry eye, refractive error, or any eye injury residual other than a fracture of the zygoma or cold sensitivity, the claim has not been adjudicated. The Veteran's statements are REFERRED to the agency of original jurisdiction (AOJ), which should ask the Veteran to clarify whether he intended to seek service connection for a right eye injury residual other than a fracture of the zygoma or cold sensitivity. If so, the AOJ should undertake appropriate action. FINDINGS OF FACT 1. The Veteran's subjective report of headaches when he is exposed to cold weather is the only current symptom of brain trauma due to a fracture of the right zygoma which has been medically identified, other than cold sensitivity due to the nature of the fracture. 2. Resolving doubt in the Veteran's favor, headache residuals of the TBI may be distinguished from cold sensitivity manifested by pain, for which service connection has been separately granted and evaluated. 3. The Veteran's headaches when exposed to cold are not equivalent to three or more subjective symptoms of traumatic brain injury, and the evidence establishes that such headaches do not moderately interfere with activities of daily living, work-like activities, or family or other close relationships. CONCLUSION OF LAW The criteria for an initial compensable rating for headache residuals of a "cracked skull" with right zygoma trauma, separate from the 10 percent evaluation awarded for cold sensitivity, residual to an eye injury, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7122-7199, 4.124a, Diagnostic Codes 8045, 8100 (2012); 38 C.F.R. §§ 4.124a, 4.127, Diagnostic Codes 8045, 9304 (as in effect prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has been granted service connection for a "cracked skull," diagnosed as a fracture of the right malar eminence or right zygoma in service, and a noncompensable evaluation has been assigned. The Veteran has disagreed with that evaluation. The Board will address whether VA has met its statutory duties to provide the Veteran with notice and assistance before addressing the merits of the appeal. VA's duties to the claimant VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principe, 16 Vet. App. 183, 187 (2002). Here, the Veteran is challenging initial evaluation assigned following a grant of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims held that in cases where service connection has been granted, and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven. Once a claim has been granted, no further action to provide notice under section 5103(a) is required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before the claim for service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. Duty to assist VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The Board observes that service treatment records and post-service and VA clinical records for the period spanning the pendency of the appeal have been obtained and associated with the claims file. An additional request for service treatment records was made in 2011, to include a request for records from the US Naval Hospital, Portsmouth, Virginia. An additional negative response is associated with the claims files. The Board has reviewed the Virtual VA electronic information database, as well as clinical records for the Veteran associated with the claims files. The Veteran has not identified any private provider who treated him for the disability at issue, and has not identified any additional relevant records. The Veteran was afforded VA examinations in 2006, 2011, and 2013. The Board has reviewed the examination reports, and finds that the examination reports, viewed together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA actions are sufficient to substantially comply with the directive of the February 2011 and in May 2012 Board Remands. Stegall v. West, 11 Vet. App. 268 (1998). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that an RO Decision Review Officer or an individual who chairs a Veteran's hearing before the Board to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, the issues on appeal were correctly identified during the Veteran's 2009 hearing before the Board; the Board notes that two of the three issues then on appeal have been granted. The Veteran's testimony as to what symptoms he attributed to his "cracked skull" was elicited at the hearing. See Transcript, September 2009 hearing, 14-16. The duties under 38 C.F.R. § 3.103 have been met. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Claims for increased ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The criteria for evaluating traumatic brain injury (TBI) were revised during the pendency of this appeal. See 73 Fed. Reg. 54693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). A veteran may request review under the new regulations, but a rating under the revised criteria will not have an effective date prior to October 23, 2008. The Veteran's testimony at his hearing before the Board has been accepted as a request that his claim be reviewed under the new regulation, if the new regulation is more favorable to his claim. The rating criteria in effect prior to October 23, 2008 state that, for brain disease due to trauma, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code (DC) 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 are not assignable in the absence of multi-infarct dementia association with brain trauma. Revised DC 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Id. 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. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045 here that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Facts The service treatment records establish that the Veteran was operating a lathe in service in August 1956 when a piece of the shaft of the lathe flew off and hit him near the right eye, just below the eye. Radiologic examination conducted in August 1956 disclosed a fracture of the right malar eminence. The Veteran denied any period of unconsciousness. There were two small lacerations above and below the eye which required sutures. The Veteran was admitted to the US Naval Hospital in Portsmouth, Virgina, dated the day following the accident, states that review of the skull x-rays disclosed fracture of zygomatic-maxillary suture line with slight upward displacement of the zygomatic bone. The final diagnosis, noted two days later, reflects that the Veteran was discharged to duty as fit following a simple fracture of the infraorbital margin of the right eye. The discharge summary from hospitalization notes that the maxillary sinus was clear. No residuals of that injury were noted on the 1957 service separation medical examination report. On VA examination conducted in February 2006, the examiner noted the Veteran's history of in-service trauma to the right zygoma. The examiner noted that the Veteran had retired and was not employed, but was volunteering as an evangelist. The examiner opined that the history of trauma had no effect on the Veteran's daily activities. After the noncompensable evaluation was assigned for residuals of zygoma trauma, the Veteran disagreed, stating that he had drooping of the right eye as the result of the injury. At his hearing before the Board in 2009, the Veteran testified that he used eye drops in service for "lazy eye," and that he still had that drooping. The Veteran testified that the drooping was worse when he was tired. The Veteran also testified that it was painful to be out in the cold, and that, when he was out in cold weather, his injury would really "bother" him. He noted that this problem was worse when he was employed, since he had been a construction worker and had to be out in the cold. The Veteran also testified that he would get headaches. On VA examination of the eye in May 2011, the Veteran reported that he had pain in the right eye when he was outside in cold weather. The examiner opined that it was possible that open air pockets remained within the injured area, resulting in cold sensitivity which would be perceived as discomfort or pain in the right eye on a cold or windy day. The examiner who conducted general medical examination also concluded that pain was the Veteran's primary residual of the fracture. However, the examiner did not discuss the Veteran's testimony that he experienced headaches which he attributed to the fracture to the right zygoma that occurred in service. On VA examination conducted in February 2013, the examiner determined that there were no apparent residuals of the 1956 right zygoma fracture. The examiner stated that the Veteran had no complaints of impairment of memory, attention, concentration, or executive functions. The examiner considered the Veteran's judgment normal. His social actions were routinely appropriate. The Veteran was oriented to person, time, place and situation. His motor activity and visual-spatial orientation were described as normal. There were no neurobehavioral effects of the right zygoma injury. The examiner stated that the Veteran reported that he had headaches once or twice a year when he was outside in the cold. The examiner stated that the Veteran's TBI was "decades ago" and was now causing no disability that could be seen on examination. Analysis Under the regulations in effect prior to October 23, 2008, applicable when the Veteran submitted his 2005 claim for service connection for residuals of a "cracked skull" or TBI, he is entitled to a separate evaluation for any purely neurological disability due to that TBI, such as hemiplegia, epileptiform seizures, facial nerve paralysis, or similar disability. No hemiplegia, paralysis, seizures, or other neurologic impairment have been identified since the Veteran incurred the injury in 1956. In particular, the evidence establishes that the Veteran was employed in construction until he retired, and the Veteran has not alleged that any residual nerve or muscle impairment interfered with any aspect of his employment. Under the regulations in effect prior to October 23, 2008, subjective symptoms such as headache, dizziness, insomnia, or the like, may be rated as 10 percent and no more. The regulation specifies that the 10 percent evaluation for subjective symptoms "will not be combined with any other rating for a disability due to brain trauma." The Veteran's subjective complaints of pain on exposure to cold has been attributed to the specific type of fracture at the site of the right zygoma, and is not attributed to brain trauma. Resolving reasonable doubt in the Veteran's favor, the Board finds that the cold sensitivity specifically attributed to the fracture site, described as pain due to open bone pockets at the fracture site, is a separate symptom from headaches due to brain trauma, even though the Veteran primarily notices the headaches when exposed to cold. Under the regulations in effect when the Veteran filed his claim, a 10 percent rating for subjective symptoms due to brain trauma may not be combined with any other compensable evaluation due to brain trauma. Since the medical evidence establishes that the Veteran's cold sensitivity is due to trauma to the bones of the face, not due to the brain trauma sustained at the time of the fracture, the Board finds that assignment of a compensable, 10 percent evaluation under DC 8045 for headaches due to brain trauma is not precluded by the terms of the regulation. The Board must therefore consider whether the Veteran is entitled to an evaluation in excess of 10 percent for brain trauma. Certainly, the regulation in effect in October 2008 states that no evaluation in excess of 10 percent may be assigned for subjective complaints of brain trauma. Therefore, an evaluation in excess of 10 percent for subjective symptoms due to brain trauma may not be assigned prior to October 23, 2008. The Board must consider whether the Veteran is entitled to an evaluation in excess of 10 percent from that date. The preponderance of the evidence establishes that no objective symptoms of brain trauma were identified by any VA examiner. The examiner who conducted 2013 VA examination specifically noted that there were no cognitive, emotional/behavior, or physical residuals of the TBI, other than the cold sensitivity and headaches reported by the Veteran. In the absence of three or more subjective symptoms of traumatic brain injury, or evidence which establishes that the Veteran's headaches resulted in moderate interference with activities of daily living, work-like activities, or family or other close relationships after October 23, 2008, a compensable rating is not warranted under the revised regulation. However, as the 10 percent evaluation assigned in this decision is warranted under the regulations applicable when the Veteran submitted the claim, that evaluation is applicable to the entire pendency of the claim. The preponderance of the evidence is against assignment of an evaluation in excess of 10 percent under the revised criteria for evaluation of TBI. The VA examination findings are consistent with the evidence, which establishes that the Veteran was gainfully employed in a physically demanding job for many years, and that he volunteered as an evangelist, an activity requiring both physical and mental aspects, following his retirement. The evidence establishes that the Veteran has been married for more than 40 years, and he has not alleged any interference with his family life as a result of his TBI. The Veteran has not alleged that any residual of the in-service injury, other than cold sensitivity or headaches, interfered with his activities of daily living after his retirement. Because there is no medical or lay evidence that the Veteran meets any criterion for cognitive, emotional/behavior, or physical impairment, the Veteran does not meet any criterion for an evaluation in excess of 10 percent for TBI from October 23, 2008. The Board notes that the assignment of a 10 percent evaluation for subjective symptoms under DC 8045 is not inextricably intertwined with any claim for service connection for a scar over the eye, a scar under the eye, lazy eye lid syndrome, dry eyes, "lazy eye," or worsening vision, and the evaluation addressed in this decision need not be deferred if the Veteran has raised and wishes to pursue such claims. The preponderance of the evidence is against an evaluation in excess of 10 percent for TBI. There is no reasonable doubt which may be resolved in the Veteran's favor. A 10 percent evaluation for headaches, but no higher rating, may be assigned. 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 analytical steps necessary to determine whether referral for such consideration is warranted have been clarified. See Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule. When the disability picture is contemplated, the assigned schedular rating is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case reflects that the Veteran's only symptoms of his service-connected fracture of the right zygoma are pain with exposure to cold and headaches. The Veteran's pain on exposure to cold has been attributed to the fracture site, and the Veteran has not perfected substantive appeal following the assignment of a 10 percent initial evaluation for that disability. This decision addresses only the 10 percent evaluation granted herein for the Veteran's subjective symptoms of headache. By the terms of the regulation in effect when the Veteran submitted the claim for service connection for TBI, an evaluation in excess of 10 percent is precluded for subjective symptoms. The rating schedule allows for a higher rating, but only if there are objective symptoms which may be separately evaluated, such as neurologic residuals. No provider identified objective disability prior to October 23, 2008, or after that date. The Board finds that the Veteran's headaches are encompassed in the schedular rating under DC 8045. The Veteran's headaches are also contemplated within the revised criteria as in effect for claims submitted after October 23, 2008, although the revised criteria would not provide a compensable evaluation. The assigned schedular evaluation, under either version of the regulation, is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). There is no evidence that the Veteran's headaches have resulted in "marked" interference with employment or any periods of hospitalization during the pendency of this claim, nor does the Veteran so contend. Thus, even if the Board found that analysis could proceed to the second step, the case does not meet the criteria for referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, an extraschedular rating must be assigned. Id. Thus, a determination that the Board incorrectly evaluated the facts as to the first prong of the Thun analysis would not serve to support referral for assignment of an extraschedular evaluation. Referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not required under 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An initial 10 percent evaluation for headache residuals of a "cracked skull" with right zygoma trauma, is granted; the appeal is granted to this extent only. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs