Citation Nr: 1622154 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 10-26 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a compensable rating prior to March 21, 2011, and a rating in excess of 10 percent after March 22, 2011, for residuals from a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from August 1992 to December 1996 and from January 2003 to April 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In March 2015, the Board remanded the Veteran's claims for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDING OF FACT During the entire appeal period, the Veteran's residuals from a TBI consist of mild impairment of memory, attention, concentration, and executive functions. CONCLUSION OF LAW 1. The criteria for a 10 percent rating, but no higher, for residuals from a TBI were met as of the date the Veteran's claim was received, December 15, 2008. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2015). 2. After March 22, 2011, the criteria for a rating in excess of 10 percent for residuals from a TBI have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Codes 8045, 8100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board and was scheduled for a hearing in October 2014, but he withdrew his request for a hearing in September 2014. The Veteran was also provided multiple VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disability on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Veteran has not objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In December 2008, the Veteran filed a claim for service connection for TBI. In a July 2009 rating decision, he was granted service connection for his TBI at a noncompensable rating effective May 9, 2008. In a March 2013 rating decision, he was granted an increased rating of 10 percent for his TBI effective March 22, 2011. The Veteran asserts he is entitled to higher ratings for his TBI. TBIs are rating under Diagnostic Code 8045, which 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2015). 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 headaches 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, 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. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." 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 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 evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation 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, assign a separate evaluation for each condition. Note (2): 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. Note (3): "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. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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. The Veteran's TBI is rated under Diagnostic Code 8100-8045 for headaches due to his TBI. Under Diagnostic Code 8100, migraines are evaluated as follows: a noncompensable rating is assigned with less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran's treatment records show that in October 2008, he underwent a consultation for TBI. He reported having mild sensitivity to light, moderate loss of balance, moderate poor coordination, moderate vision problems, moderate hearing difficulty, moderate change in taste or smell, moderate fatigue, severe dizziness, severe nausea, severe difficulty making decisions, severe slowed thinking, very severe headaches, very severe sensitivity to noise, very severe poor concentration, very severe forgetfulness, very severe feelings of anxiety or depression, very severe irritability, very severe poor frustration tolerance. He reported headaches and pain in his legs, shoulder, upper back, and lower back. On examination, he was fully alert and oriented, responsive, and cooperative. At an August 2009 VA examination, the Veteran reported headaches and feelings of dizziness. He reported difficulty sleeping and daytime fatigue at times. He reported having a good memory, but had difficulty with attention and concentration. He reported right-sided neck pain and occasional numbness in his right fingers. On examination, he had normal 5/5 muscle strength with no muscle atrophy, normal reflexes, and normal sensation. He retained a normal gait. His coordination was normal. He scored a 30/30 on a mini-mental status examination. His vision and hearing were intact. Cervical spine range of motion was normal with no tenderness. The examiner reported that there was no objective evidence of difficulty with memory, attention, concentration, or executive functions. The examiner reported that the Veteran's judgement was normal. The examiner reported that the Veteran's social interaction was occasionally inappropriate. The examiner reported that the Veteran was always oriented. The examiner reported that the Veteran had normal motor activity. The examiner reported that the Veteran had normal visual spatial orientation. The examiner reported that the Veteran's subjective symptoms did not interfere with activities of daily living or relationships, although the Veteran had not worked for several years. The examiner reported that the Veteran's neurobehavioral affects occasionally interfered with social interaction. The examiner reported that the Veteran was able to communicate and comprehend spoken or written language. The examiner reported that the Veteran's consciousness was normal. The Veteran was diagnosed with mild TBI with tension headaches. The examiner reported that the emotional/behavioral signs and symptoms exhibited by the Veteran were felt to be due to a comorbid mental disorder and did not represent residuals of TBI. From October 2009 to December 2009, the Veteran reported dizziness and falls. In March 2011, he slipped and fell. He reported being unconscious for 30 minutes. He reported dizziness, headaches, blurry vision, nausea, and olfactory changes. A head CT was normal. He was diagnosed with post-concussive syndrome, improving slowly. In his notice of disagreement in October 2009, the Veteran stated that he was undergoing treatment for his TBI with few results. He stated that he had a difficult time completing the physical therapy exercises because he became dizzy when he would lay down and experienced numbness and tingling in his fingertips, followed by an onset of tension headaches. At a March 2011 VA examination, the examiner had the opportunity to review the Veteran's claims file, interview the Veteran, and conduct an examination. The Veteran reported that his recent fall did not result in any new symptoms, but aggravated all of his previous symptoms to a large degree, and the examiner noted that it might take a while for the Veteran to stabilize. The Veteran had headaches about three to four times per week, generally lasting several hours and resulting in some nausea and light and sound sensitivity. He reported mild dizziness and mild balance problems when waking up in the morning. He reported problems staying asleep at night. He reported severe fatigue and moderate malaise. He reported mild memory impairment. He had normal concentration, attention, and executive function. He had normal speech and swallowing but for occasional slurring. He reported moderate neck pain. He denied having any bowel or bladder problems. He reported mood swings, anxiety, and depression, but he was also noted as being diagnosed with PTSD. He denied any erectile dysfunction. He reported tingling over his tongue and left hand since the 1990s, although he could not remember if it started after a specific TBI. He reported hearing problems and tinnitus, although he could not remember if these started after a specific TBI. He denied having any problems with taste or smell. He denied having any seizures. He reported hypersensitivity to sound and light, worse with headaches. He reported irritability and restlessness related to his PTSD. The examiner reported that his symptoms were stable with regard to his injuries sustained during active service. On examination, the Veteran had normal 5/5 strength, had normal sensory function, had a normal gait, and had normal reflexes. He had tingling over the left side of his tongue. He scored a 29/30 on a mini-mental status examination. The examiner noted that there were no clear signs of executive function or problems with attention and concentration. The Veteran's hearing and vision were grossly normal. He had no obvious endocrine dysfunction or autonomic dysfunction. He had normal motor activity. He was able to communicate well. He had a normal level of consciousness. The examiner noted that the Veteran had a normal CT a few weeks prior. The Veteran was diagnosed with TBI with migraine and tension type headaches secondary to his TBI. The examiner reported that the Veteran's cognitive symptoms were primarily due to his PTSD and not direct effects of his TBI. At January 2012 and September 2014 VA examinations for his PTSD, the examiners noted that it was possible to differentiate the symptoms of the Veteran's symptoms of PTSD and TBI. The January 2012 examiner reported that the Veteran's cognitive symptoms were believed to be secondary to his PTSD and not his TBI. The September 2014 examiner reported that the majority of the Veteran's occupational and social impairment was due to his PTSD and that his TBI only mildly contributed. In April 2015, the Veteran denied having any weakness, tremors, or balance problems. At an August 2015 VA examination for his TBI and headaches, the examiner had the opportunity to review the Veteran's medical records, interview the Veteran, and conduct an examination. The Veteran reported worsening of his headaches and memory problems. He reported having headaches almost daily that lasted for several hours. Regarding TBI, the examiner indicated that the Veteran voiced complaints of memory loss, attention, and concentration problems, but that there was no objective evidence on testing. The examiner indicated that the Veteran's judgment was normal, his social interaction was routinely appropriate, he was fully oriented, he had normal motor activity, and he had normal visual spatial orientation, he had no subjective symptoms, he had one or more neurobehavioral effects that did not interfere with his workplace interaction or social interaction, he was able to communicate by spoken and written language, and his consciousness was normal. The examiner indicated that the Veteran had no mental, physical or neurological conditions or residuals attributable to a TBI. The examiner indicated that any residuals of a TBI did not impact the Veteran's ability to work. The examiner reported that the Veteran had mild TBI with no residuals and that his neurobehavioral symptoms were consistent with a co-morbid mental health condition and not due to TBI. The examiner opined that the Veteran's subjective complaints of memory, focus, and concentration issues were not likely associated with his TBI since these symptoms were getting progressively worse and occurred remotely from the TBI and/or did not follow the typical natural history for TBI symptoms. The examiner concluded that therefore these would not be considered post-concussive/post-TBI in etiology. The examiner also reported that other diagnoses such as a comorbid mental health condition, chronic headaches, and sleep issues were most likely contributing his subjective complaints of memory loss, attention, and concentration. Regarding his headaches, the examiner indicated that the Veteran experienced headache pain, sensitivity to light, and dizziness. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner opined that the Veteran's headaches were a separate medical condition or could be contributed by other etiologies such as comorbid mental health condition, sleep issues, and chronic neck pain. The examiner concluded that the Veteran's headaches were not a TBI residual. Based on the VA examinations, the Board finds that evidence indicates that the Veteran's TBI residual presently manifests only as mild memory loss, attention, concentration, or executive functions and headaches. Under Diagnostic Code 8100, migraines are evaluated as follows: a noncompensable rating is assigned with less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The August 2015 examiner indicated that the Veteran's headaches did not have characteristic prostrating attacks of migraine/non-migraine headache pain. As such, the Veteran's headaches are rated noncompensable and it is more beneficial to rate the Veteran's residuals of TBI under Diagnostic Code 8045. Turning to the criteria of "Under Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," the August 2009 VA examiner indicated that the Veteran had a "1" level of impairment under memory, attention, concentration, and executive functions, under social interaction, and under neurobehavioral effects. The examiner indicated that the Veteran had a "0" level of impairment under judgment, orientation, motor activity, visual spatial orientation, subjective symptoms, and communication. The examiner indicated that the Veteran's conscious was normal. The March 2011 examiner indicated that the Veteran had a "1" level of impairment under memory, attention, concentration, and executive functions, but that this could be explained by his PTSD. The examiner indicated that the Veteran's judgment was not normal, but this was again the result of his PTSD. The examiner indicated that the Veteran had a "2" level of impairment under social interaction, but that this was due to his PTSD. The examiner indicated that the Veteran had neurobehavioral effects that seriously interfered with his work, but that these were due to his PTSD. The examiner indicated that the Veteran had a "0" level of impairment under orientation, motor activity, visual spatial orientation, subjective symptoms, and communication. The examiner indicated that the Veteran's conscious was normal. The August 2015 examiner indicated that the Veteran had a "1" level of impairment under memory, attention, concentration, and executive functions, but without objective evidence on testing. The examiner indicated that the Veteran had a "0" level of impairment under judgment, social interaction, orientation, motor activity, visual spatial orientation, subjective symptoms, neurobehavioral effects, and communication. The examiner indicated that the Veteran's conscious was normal. Based on a review of the evidence as described above, a schedular rating of 10 percent is warranted from May 9, 2008 the date the Veteran's claim was received, as the Veteran's residuals from TBI resulted in a "1" level of impairment under memory, attention, concentration. However, a rating in excess of 10 percent is not warranted at any time under Diagnostic Code 8045 as the Veteran's highest facet that was not attributable to his PTSD is rated at a "1," which is assigned a 10 percent rating. Furthermore, all TBI VA examiners and PTSD examiners indicated that the Veteran's TBI symptoms were mild and that the majority of the Veteran's occupational and social impairments were due to his PTSD, which is separately rated at 100 percent. Extraschedular Considerations The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. Regarding the Veteran's TBI, the evidence suggests that the symptomatology is reasonably contemplated by the schedular rating criteria discussed above. The Veteran's TBI was applied to the applicable rating criteria, general counsel opinions, and case law. Although the Diagnostic Codes allows for higher ratings, the Board fully explained why higher ratings were not warranted. Moreover, there is simply no allegation that the Veteran's TBI is unique or unusual in any way. The Board finds that the schedular evaluations assigned for the Veteran's service-connected TBI is adequate in this case. The regulations for TBI direct that all symptoms of a TBI are to be considered within the broad rating criteria for TBI, and that any disabilities that can be separated should be separately rated. As such, VA is effectively directed to consider any and all TBI residual symptomatology within the assigned schedular rating. As such, the Board concludes that referral for extraschedular consideration is not warranted in this case. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, the Veteran he has not alleged since that he is unemployable on solely on account of his TBI. Thus, the Board finds that Rice is inapplicable ORDER From May 9, 2008 to March 21, 2011, a rating of 10 percent for residuals from a TBI is granted, subject to the laws and regulations governing the award of monetary benefits. After March 22, 2011, a rating in excess of 10 percent for residuals from a TBI is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs