Citation Nr: 1647381	
Decision Date: 12/20/16    Archive Date: 12/30/16

DOCKET NO.  09-40 741	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for residuals of a left second toe stress fracture.

2. Entitlement to an initial compensable disability rating for headaches.

3. Entitlement to an initial compensable disability rating for residuals of right ankle sprain.

4. Entitlement to an initial disability rating in excess of 10 percent for lumbosacral spondylolysis with Grade 1 listhesis.

5. Entitlement to an initial disability rating in excess of 30 percent for adjustment disorder with mixed anxiety and depression prior to September 10, 2014.

6. Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) prior to September 10, 2014.

7. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with TBI since September 10, 2014.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel


INTRODUCTION

The Veteran served on active duty from July 2004 to September 2008, to include service in Southwest Asia for which he was awarded the Combat Action Ribbon, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  Jurisdiction over this matter was subsequently transferred to the Houston, Texas, RO.

In March 2015 the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge.  Due to a problem with the equipment, no formal transcript of the hearing could be obtained.  In April 2015, the Veteran was offered to opportunity to appear at another hearing so that he could present testimony and have a transcript entered in the record.  The Veteran formally declined the opportunity for an additional hearing and requested that the Board make a decision based on the evidence of record.

This case was previously before the Board in July 2015, when it was remanded for further development, to include obtaining additional VA and private treatment records.  The private and VA treatment records have been obtained.  Therefore, no further action to ensure compliance with the remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998). 


FINDINGS OF FACT

1. No current residual disability of a left second toe stress fracture has been shown.

2. Throughout the appeals period, the Veteran's migraine headaches have been manifested by attacks occurring three or four times per month, accompanied by blurry vision and light and noise sensitivity, which, while not prostrating in nature, interfere with the Veteran's ability to function or perform work activities.

3. Throughout the appeals period, the Veteran's right ankle disability has been characterized by occasional pain when walking and mild tenderness to palpation; limitation of motion, instability, flare-ups, and arthritis have not been shown.

4. Throughout the appeals period, the Veteran's low back disability has been characterized by back pain with limitation of flexion to 70 degrees or greater; limitation of flexion to less than 60 degrees has not been shown. 

5. Prior to September 10, 2014, the Veteran's acquired psychiatric disability was characterized by a disability picture of occasional decrease in work efficiency due to such symptoms as depression, anxiety, suspiciousness, anger, chronic sleep impairment, nightmares, flashbacks, irritability, and mild memory loss.  A disability picture of reduced reliability and productivity was not shown.

6. Prior to September 10, 2014, the Veteran's residuals of TBI not accounted for by separate ratings were equal to a level of impairment of "1" on the table for evaluation of cognitive impairments and other residuals of TBI, representing a mild level of impairment.

7. As of September 10, 2014, the Veteran's combined disabilities of PTSD and residuals of TBI were manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as difficulty in following directions, disturbance of motivation and mood, struggles with emotional outbursts, irritability, difficulty in establishing and maintaining effective relationships, and the need to use multiple memory cues throughout the day.  Occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood have not been shown.


CONCLUSIONS OF LAW

1. The criteria for service connection for residuals of a left second toe stress fracture have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).

2. The criteria for an initial disability rating of 10 percent, but no higher, for migraine headaches have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2016).

3. The criteria for an initial compensable disability rating for residuals of a right ankle sprain have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271 (2016).

4. The criteria for an initial disability rating higher than 10 percent for lumbosacral spondylolysis with grade 1 retrolisthesis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2016).

5. The criteria for an initial disability rating higher than 30 percent for mixed anxiety and depression prior to September 10, 2014 were not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2016).

6. The criteria for an initial disability rating higher than 10 percent for residuals of TBI prior to September 10, 2014 were not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2016).

7. The criteria for a disability rating higher than 50 percent for combined PTSD and residuals of TBI after September 10, 2014 have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9100 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

In September 2008, the RO sent the Veteran a letter, prior to adjudication of his claims, providing notice, which satisfied the requirements of the VCAA.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  No additional notice is required. 

Next, VA has a duty to assist the Veteran in the development of claims.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, identified medical records have been obtained and considered.  The Veteran was afforded VA examinations in October 2009 and September 2014.  There is no argument or indication that the examinations or opinions are inadequate.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

VA regulations provide that individuals for whom medical examinations have been authorized and scheduled are required to report for such examination.  38 C.F.R. § 3.326(a).  VA regulations also address the consequences of a failure to report for a scheduled VA medical examination.  When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b).  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655(b).  In this instance, the Veteran refused any further examinations and, therefore, any inadequacies which may have existed in the examinations or opinions could not be remedied.  The claims will be decided based on the evidence of record in accordance with 38 C.F.R. § 3.655(b). 

As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159.

Principles of Service Connection

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought.  In the absence of proof of present (at any time during the pendency of the claim, see McClain v. Nicholson, 21 Vet. App. 319, 323 (2007)) disability, there can be no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain, 21 Vet. App. at 323.

The United States Court of Appeals for Veterans Claims (Court) has held that pain alone without a diagnosed or underlying malady or condition is not a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001).  

Facts and Analysis

The Veteran seeks service connection for residuals of a stress fracture of the left second toe.  The record shows that the Veteran sustained a possible stress fracture of the toe on the left foot in service.  The Veteran argued in his January 2009 notice of disagreement that "once you have a [fracture] there is a calcium build-up causing a permanent residual."

At the VA examination in October 2008, the examiner noted the history provided by the Veteran of a stress fracture of the left second toe in 2006 for which he was placed on a temporary profile.  The disability "went away" in service and he reported no residual symptoms.  Examination of the left second toe was normal and the Veteran was able to walk on his toes without difficulty.  The examiner stated that the examination of the left second toe was normal and there were no residuals.

After reviewing all of the evidence of record, including that set forth above, the Board finds that there is no basis for service connection for residuals of a fracture of the left second toe.  Specifically, the Board finds that there is no current disability and that no residuals are shown; the Veteran has not even complained of pain or limitation of movement in his toe.  Despite his assertions that there must be residuals in the form of calcium build-up, there is no evidence of any resulting functional loss or disability as a result of whatever underlying residuals might exist.  Without evidence of a current disability, there is no basis for service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Assigning Disability Ratings

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  In this instance, staged ratings were assigned through the combination of previously separate ratings for anxiety and TBI into a joint rating for PTSD and TBI, effective September 2014.  Based on the evidence of record, there is no basis for altering the assigned staged ratings.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 must be considered.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss.  Pain may result in functional loss, however, if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Also, functional loss due to pain must be supported by pathology and shown through objective observation.  Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see Mitchell, 25 Vet. App. at 38 (examination reports should address any range of motion loss specifically due to pain and any functional loss due to pain during flare ups).

Under Diagnostic Code 5010, arthritis due to trauma substantiated by X-ray findings is rated under Diagnostic Code 5003 as degenerative arthritis.  Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.

When there is some limitation of motion of the specific joint that is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for each such major joint affected by limitation of motion is assigned.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.




Facts and Analysis

Headaches

Diagnostic Code 8100 provides ratings for migraine headaches.  Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling.  Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling.  Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling.  Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling.  38 C.F.R. § 4.124a.  

The rating criteria do not define "prostrating," nor has the Court of Appeals for Veterans Claims (Court).  Cf. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999), (quoting the Diagnostic Code 8100 verbatim but not specifically addressing the matter of what is a prostrating attack).  By way of reference, the Board notes that "prostration" is defined as "extreme exhaustion or powerlessness."  Dorland's Illustrated Medical Dictionary 1531 (32nd Ed. 2012).

At the VA examination in October 2008, the Veteran reported that his headaches had begun as a teenager and had increased during his time in Iraq.  They occurred once or twice a month, beginning over the forehead and left temple area.  They were accompanied by nausea and photophobia, but no aura or loss of function.  He reported that his headaches tend to last a couple of days.

At a psychiatric consultation at VA in December 2008, the Veteran reported that he continued to have headaches and vision changes, but denied dizziness, lightheadedness, or loss of consciousness.  He had headaches one or two time per week, primarily in the area over his left eye, for which he took medication.  His headaches were accompanied by sensitivity to light and occasional blurry vision, but no nausea or vomiting.

A treatment note from December 2009 stated that the Veteran's headaches had improved with medication and had been reduced to two or three per month.

At the September 2014 VA examination, the Veteran reported that he had about three or four headaches a week, each lasting up to 30 minutes at a time, localized to the bi-temporal region.  He didn't take prescription medication for his headaches, but used over-the-counter NSAIDs.  His headaches tended to be triggered by increased stress.  Headaches were accompanied by tinnitus.  The headaches were not prostrating in nature, but the examiner noted that the Veteran might be unable to work or perform job duties during a headache.

Based on all of the evidence of record, including that set forth above, the Board finds that the Veteran's disability picture relative to his migraine headaches throughout the appeals period has more nearly approximated one consistent with an initial disability rating of 10 percent.  The criteria for a 10 percent rating specify characteristic prostrating attacks averaging one in two months over the last several months.  The Veteran's headaches occur three or four times per month, accompanied by occasional blurred vision and light or noise sensitivity.  The September 2014 VA examiner noted that while the headaches were not prostrating in nature, they would prevent him from engaging in work for as long as they lasted.  In light of the fact that the headaches would interfere with the Veteran's ability to function and occur much more frequently than specified in the criteria for a 10 percent rating, the Board finds that the criteria are more nearly approximated in this instance.  A still higher, or 20 percent, disability rating would not be warranted, however, because the 10 percent criteria have only been approximated but not fully satisfied.  38 C.F.R. § 4.124a.

Right Ankle

Ankle disabilities are rated under Diagnostic Code 5270 (ankylosis) and 5271 (limitation of extension).  Ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling.  38 C.F.R. § 4.71a.  Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II.  Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling.  38 C.F.R. § 4.71a.

While other Diagnostic Codes cover ankylosis of the ankle, or of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy residuals, these conditions are not applicable to the Veteran's right current ankle disability.  38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-5274.  Indeed, ankylosis has not been shown.

At the VA examination in October 2008, the Veteran reported that he sometimes woke up in the morning with a mild ache in his ankle at the area of the Achilles tendon insertion which subsided when he moved.  On examination, his right ankle was normal and asymptomatic with dorsiflexion to 20 degrees and plantar flexion to 45 degrees.  There was normal strength in the ankle and the Veteran could walk on his toes and his heels without pain.  There was mild tenderness over the insertion of the Achilles tendon without any swelling, deformities, or instability.  The examiner diagnosed mild Achilles tendonitis.

At the September 2014 VA examination, the Veteran reported experiencing occasional aching pain in his right ankle when walking, occurring about three or four times per week.  He did not have flare-ups and no change in symptoms or functionality after repetitive use.  The Veteran had full range of motion in his ankle with no objective evidence of pain on motion.  There was evidence of tenderness over the anterior talofibular ligament and pain with inversion stress testing, but no evidence of instability.  An X-ray of the right ankle was without significant abnormalities. 

Based on all of the evidence of record, including that set forth above, the Board finds that the criteria for an initial compensable disability rating for the right ankle have not been met.  Specifically, the evidence shows that the Veteran's only symptoms of right ankle disability are tenderness to palpation and occasional ankle pain when walking.  There is no limitation of motion, to include limitation due to pain, there is no evidence of instability, there is no evidence of arthritis, and there are no flare-ups or increased symptoms with repetitive motion.  In short, none of the criteria for assignment of a compensable disability rating has been met under any of the potentially applicable Diagnostic Criteria and the Veteran's claim for a compensable rating is denied.

Low Back

Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula).  The IVDS Formula is based on the presence and duration of incapacitating episodes, that is, periods of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Note (1) to Diagnostic Code 5243.  The Veteran has not reported any incapacitating episodes and none are shown in the treatment records; therefore, there is no need to address an increased rating under these criteria.

The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a.

Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned.  This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss."  Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  See also Plate V, 38 C.F.R. § 4.71a, Note (2). 

At the October 2008 VA examination, the Veteran reported having back pain on and off prior to experiencing an IED blast.  He had constant dull pain across his lower back with no radiation; it increase with lifting or bending repeatedly, lasting minutes to hours or even days.  On examination, the Veteran's lumbosacral spine was normal and asymptomatic with flexion to 90 degrees, extension to 30 degrees, flexion to 30 degrees bilaterally and rotation to 45 degrees bilaterally.  There was no evidence of guarding of movement and no spasm.  The Veteran did not experience increased symptoms with repetitive motion.  The examiner diagnosed low back strain and stated that there was no effect on the Veteran's occupation or daily activities. 

A November 2008 X-ray of the low back found a grade 1 spondylolisthesis and bilateral spondylolysis between L5 and S1.

The Veteran was seen for a psychiatric consultation at VA in December 2008.  He related his experiences of an IED blast in Iraq, noting that the force of the blast had been sufficient to break his back, although a fracture was not identified at the time.  

At a chiropractic visit at VA in April 2009, the Veteran had full active range of motion and some local tenderness in the low back without any overt findings.  He complained of waxing and waning back pain and stiffness.  He was taking medication for his back pain but said it was neither better nor worse as a result.

At the September 2014 VA examination, the Veteran's complaints included discomfort with bending, lifting, twisting, and occasionally with walking, all present on a daily basis.  He did not have any lower extremity discomfort.  The Veteran did not experience flare-ups and did not have loss of functionality or increase in symptoms with repetitive motion.  Range of motion testing showed flexion to 70 degrees and extension to 20 degrees, with pain at the end points.  Lateral flexion and lateral rotation was to 30 degrees bilaterally with no evidence of pain.  The Veteran did not have any tenderness to palpation and his spinal alignment and gait were normal.  There were no muscle spasms and no evidence of guarding.  The Veteran did not experience any neurological symptoms or radiculopathy.  X-rays showed L5-S1 spondylolysis with grade 1 spondylolisthesis.

Based on the evidence of record, to include that set forth above, the Board finds that there is no evidence to support a disability rating higher than 10 percent for low back disability.  The Veteran's low back disability is manifested by painful motion with limitation of flexion to 70 degrees, as shown at the September 2014 VA examination.  These findings are consistent with the assigned 10 percent disability rating, in that it is greater than 60 days and less than 85 degrees; limitation of flexion to less than 60 degrees has not been shown.  As such, the criteria for a higher disability rating have not been met and the claim for a higher rating must be denied.  38 C.F.R. § 4.71a.
  
Psychiatric Disability

The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities:  

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), is assigned a 30 percent rating. 

Occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, is assigned a 50 percent rating. 

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:  suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, is assigned a 70 percent rating.  38 C.F.R. § 4.130. 

The Veteran was seen at VA for treatment in September 2008, where he reported experiencing flashbacks 3 times per month, nightmares every night, angry outbursts, depression, and agitation.  He had been given a prescription medication for nightmares and had experienced some relief of these symptoms.  The provider noted that the Veteran's reported symptoms were likely related to PTSD as well as significant mood and substance abuse issues.  He had reported depression, restlessness, anger, agitation, anxiety, worry, irritability, impatience, and feeling jumpy and argumentative.  The provider diagnosed anxiety disorder and depression.

At the October 2008 VA examination, the Veteran reported psychiatric symptoms such as nightmares, waking up sweating, mood changes, and angry outbursts.  The Veteran's fiancé, who accompanied him to the examination, noted that he had become less tolerant and had a loss of energy and libido.  On mental states examination there was no evidence of inappropriate behavior, delusions or hallucinations, and the Veteran's thought processes appeared normal.  He did not report any suicidal or homicidal ideation and he was able to maintain normal personal hygiene and orientation to person, place, and time.  The Veteran reported that he had a tendency to forget appointments, conversations, and directions, and he got lost frequently.  He reported feeling depressed, although that had improved, and denied having any panic attacks.  The examiner diagnosed adjustment disorder with mixed anxiety and depression.

In December 2008, the Veteran was seen at VA and reported anxiety and suicidal and homicidal ideation without intent or plan.  There was no evidence of delusional thinking or impairment of thought processes.  At a subsequent evaluation, the Veteran reported that anger was his primary emotion, with some depression and a tendency to isolate himself.  He still experienced about one nightmare per night.  He denied having any loss of appetite.  

Based on all of the evidence of record, including that set forth above, the Board finds that there is no basis for a disability rating in excess of 30 percent for anxiety and depression prior to September 2014.  The record shows that the Veteran's disability picture was consistent with that of a 30 percent disability rating, including symptoms of depressed mood, anxiety, suspiciousness, anger, mild memory loss, chronic sleep impairment, and some impairment in occupational and social functioning but generally able to perform routine behavior satisfactorily.  The Veteran's symptoms of nightmares and flashbacks, impatience and irritability did not produce significant occupational or social impairment.  

A higher disability rating is not warranted because reduced reliability and productivity or deficiencies in most areas were not shown.  The Veteran was able to maintain an effective relationship with his wife and step-daughters and was not shown to have impaired judgment or abstract thinking, disturbances of motivation or mood, circumstantial speech, frequent panic attacks, or difficulty understanding complex commands.  He was able to maintain normal standards of personal hygiene and did not experience delusions or hallucinations.  While he did report some instances of suicidal and homicidal ideation, these were linked to his anger problems, and he had no actual intent or plan for suicide or homicide. 

In light of these considerations, the Board finds that the rating criteria for a disability rating higher than 30 percent for an acquired psychiatric disability of anxiety and depression were not met or approximated.  38 C.F.R. § 4.130.  The claim for increase is denied.

TBI

Effective in 2008, VA implemented new rating criteria with respect to evaluations of TBIs, in an attempt to encompass all aspects of the residuals of this type of injury.  Residuals of TBI are evaluated under Diagnostic Code 8045, which provides that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation.  38 C.F.R. § 4.124a, Diagnostic Code 8045.

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.  Evaluate cognitive impairment under the table titled 'Evaluation of Cognitive Impairment and Other Residuals of TBI 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.  Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled 'Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.'  However, 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 TBI Not Otherwise Classified' table.

Evaluate emotional/behavioral dysfunction under § 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 TBI Not Otherwise Classified.'

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 here that are reported on an examination, evaluate under the most appropriate diagnostic code.  Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition.  The evaluation assigned based on the 'Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified' table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.

Pyramiding, considering the same symptoms under two or more Diagnostic Codes, is prohibited.  38 C.F.R. § 4.14.

The table contains 10 important facets of TBI related to cognitive impairment and subjective symptoms.  It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th 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.  Assign a 100 percent evaluation if 'total' is the level of evaluation for one or more facets.  If no facet is evaluated as 'total,' 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.

Note (1) provides: There may be an overlap of manifestations of conditions evaluated under the table 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 medication 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) provides: The terms 'mild,' 'moderate,' and 'severe' TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning.  This classification does not affect the rating assigned under diagnostic code 8045.

At the October 2008 VA examination, the examiner noted that the Veteran had been exposed to IEDS during his Iraq tour and had suffered a mild concussion.  

A November 2008 VA assessment listed the Veteran's neurobehavioral symptoms and rated their severity.  He reported mild symptoms of nausea; moderate symptoms of dizziness and loss of balance, noise sensitivity, change in taste or smell, numbness or tingling, change in appetite; and severe symptoms of headaches, vision problems, sensitivity to light, problems making decisions, difficulty in getting organized or finishing tasks, fatigue and loss energy, difficulty sleeping, anxiety, and depression.  He also reported very severe symptoms of hearing problems, impaired concentration, becoming annoyed easily, and feeling easily overwhelmed.  He reported that these symptoms had severely interfered with his life in the past 30 days, specifically with respect to getting angry easily, loss patience, feeling irritable, and being forgetful.  
 
A June 2009 neurocognitive consultation at VA provided information on the Veteran's TBI.  The examiner noted that the findings of the evaluation were consistent with very mild residuals from post-concussive syndrome especially slowing and less efficient processing.  While there was likely some additional impact from the Veteran's chronic pain and emotional distress as well as the fact that English was his second language, there were no significant differences in outcome when comparing English and Spanish language testing which was performed.  The Veteran showed impaired functioning in terms of decreased motor coordination with each hand, slowed information processing (adversely affecting intellectual functioning, memory, and higher level cognitive functions), naming (in English), complex sequencing, decreased efficiency with complex problem solving, sustained attention performance marked by impulsive tendencies, and decreased verbal memory for less related material (word list). 

Based on all of the evidence of record, to include that set forth above, the Board finds that the disability picture presented by the Veteran's TBI residuals is one consistent with the 10 percent disability rating which was assigned prior to September 2014.  Specifically, a 10 percent disability rating is appropriate where the levels of impairment associated with mild symptoms affecting the various facets of TBI residuals.  In this instance, some of the Veteran's TBI residuals are included in the ratings assigned for migraine headaches and anxiety and depression - specifically his headaches, vision problems, sensitivity to light and sound, problems with decision making, difficulty sleeping, anxiety and depression.  They cannot be considered in the rating assigned for TBI under 38 C.F.R. § 4.14.  

Other symptoms which would need to be considered for the TBI rating are mild in nature.  Executive function and judgment impairments including difficulty making decisions, getting organized, or finishing tasks were described as mild, which would equate to a level of "1."  The Veteran's wife described him as occasionally having inappropriate social interaction, which would also equate to a level of "1."  He had mild motor impairment in the form of slowness and decreased hand coordination, which would equate to a level of "1."  He occasionally got lost and had difficulty following maps, which would equate to an impairment level of "1" for visual spatial orientation.  The Veteran reported having mild nausea and changes in taste or smell, which would equate to an impairment level of "1" for subjective symptoms.  He did not appear to have any trouble communicating and was fully conscious.  Based on all of the facets of TBI not accounted for by other ratings being at the level of a "1," a disability rating higher than 10 percent for TBI residuals prior to September 2014 is not warranted.  38 C.F.R. § 4.124a.


Combined TBI and PTSD

Beginning in September 2014, the Veteran's psychiatric symptoms and his TBI residuals were assigned a single combined rating, based on the opinion of the September 2014 VA examiner that the symptoms and effects of these disabilities overlap and that it was not possible to differentiate what portion of each symptom is attributable to which diagnosis.  It was the examiner's opinion that the Veteran's level of disability was best characterized as one of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  

The Veteran stated that he struggled with emotional outbursts, irritability, difficulty in social situations, and memory.  His wife stated that he had difficulty with navigating even using GPS and had difficulty following written or verbal directions when driving.  He was attending college level coursework through an online correspondence program and utilized multiple memory cues throughout the day.  He was not receiving any ongoing medical treatment for any aspect of his TBI other than for his PTSD/psychiatric symptoms.  The examiner indicated that the Veteran might require special considerations for certain tasks, such as taking tests/exams, and extended time for complex tasks involving memory and executive function.  The Veteran might also require memory aids and a work environment with limited exposure to loud noises or excessive visual stimulation.  

At the examination, the Veteran reported PTSD symptoms which included intrusive recollections of traumatic events, reactions to environmental cues, avoidance behaviors, decreased interest in activities, feelings of detachment toward others, problems sleeping, irritability, anger, difficulty concentrating, hypervigilance and fatigue.  He had not experienced any significant nightmares for two years, but reported that he had trouble sleeping more than four hours per night.  He was hypervigilant and checked the house frequently and he became anxious and angry when exposed to loud noises or people yelling.  He did not enjoy socializing, although he occasionally went to a restaurant or a movie; they had moved to the country to get away from the traffic which irritated him.  The Veteran's spouse reported that they had divorced in 2010 after he became physically aggressive with his stepdaughter.  Since they had reconciled, he became angry and punched holes in the wall but did not become physically aggressive.  The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances.  

Based on all of the evidence of record, to include that set forth above, the Board finds that a disability rating in excess of 50 percent for the combined disability of PTSD and residuals of TBI after September 2014 is not warranted.  The Board notes that the criteria for rating both PTSD and TBI are described in the sections above dealing with the disabilities separately.  Note (1) to Diagnostic Code 8045 provides that if the manifestations for two or more conditions cannot be clearly separated, a single rating should be assigned using whichever diagnostic criteria allows for a better assessment of overall impairment of functioning.  In this instance, the VA examiner in September 2014 focused on the Veteran's psychiatric symptoms and noted that the Veteran received ongoing treatment for those symptoms but did not require treatment for other TBI residuals.  As a result, the Board finds that a rating under the mental disorders rating criteria is appropriate.

The Veteran's disability picture with respect to his TBI residuals and PTSD as of September 2014 was one of occupational and social impairment with reduced reliability and productivity, to include difficulty in following directions, even with the use of GPS, disturbance of motivation and mood, struggles with emotional outbursts, irritability, and the need to use multiple memory cues throughout the day.  Other symptoms included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances.  The examiner noted that he would require some accommodations in a work setting, including additional times to complete complex tasks and limited exposure to loud noises or excessive visual stimulation.  All of these symptoms, when taken together, are consistent with a disability picture which is encompassed in the 50 percent disability rating criteria.  38 C.F.R. § 4.130.

The record does not show that the Veteran has deficiencies in most areas, as would be required for a 70 percent disability rating.  The Veteran was attending a college course and had an ongoing relationship with his wife and her two daughters.  He did not have any problems with his judgment, thinking, or mood, did not have obsessional rituals or illogical speech, and was able to maintain good personal hygiene.  As such, entitlement to a 70 percent disability rating for PTSD and residuals of TBI after September 2014 has not been shown.  38 C.F.R. § 4.130.

Extraschedular Rating

The Board may consider whether the Veteran's disability picture warrants referral to the Director of VA's Compensation Services for the evaluation of entitlement to extraschedular compensation.  Such a referral requires a finding that the evidence demonstrates an exceptional disability picture and that the available schedular rating for a service-connected disability is inadequate.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the Veteran's service-connected disabilities of headaches, right ankle sprain residuals, low back disability, psychiatric disabilities, and TBI are reasonably described by the respective rating criteria.  The Veteran's primary symptoms are described above.  The Board finds that the schedular criteria contemplate the Veteran's symptoms and disability pictures and the Rating Schedule provides for a higher rating for more severe manifestations.  As such, the assigned schedular ratings for all of the disabilities on appeal are adequate and referral for extraschedular consideration is not required with respect to any of the disabilities under 38 C.F.R. § 3.321 (b)(1).

In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities."  Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record.  The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities").  The Board will therefore not address the issue further.

In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, neither the Veteran, nor his representative, has suggested that service-connected disabilities preclude his employment.  Additionally, there is no indication in the record that the Veteran's service-connected disabilities have negatively impacted his employability.  On the most recent VA examination, it was reported that the Veteran worked as a night stocker and was taking college courses online. Thus, any further consideration of the Veteran's claims under Rice is not warranted at this time.


ORDER

Entitlement to service connection for residuals of a left second toe fracture is denied.

Entitlement to an initial 10 percent disability rating, but no higher, for migraine headaches is allowed, subject to the regulations pertinent to the disbursement of monetary funds.  

Entitlement to an initial compensable disability rating for a right ankle disability is denied.

Entitlement to an initial disability rating higher than 10 percent for a low back disability is denied.

Entitlement to an initial disability rating higher than 30 percent for anxiety and depression prior to September 10, 2014 is denied.

Entitlement to an initial disability rating higher than 10 percent for residuals of TBI prior to September 10, 2014 is denied.

Entitlement to a disability rating higher than 50 percent for combined PTSD and residuals of TBI after September 10, 2014 is denied.




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs