Citation Nr: 1602138	
Decision Date: 01/19/16    Archive Date: 01/27/16

DOCKET NO.  05-03 121	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for bilateral double vision claimed as the result of a fall on April 9, 2003 at a VA Medical Center (VAMC).

2. Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a back disorder claimed as the result of a fall on April 9, 2003 at a VAMC.

3. Entitlement to an initial disability rating in excess of 10 percent for service-connected head trauma residuals (traumatic brain injury/TBI) with headaches from April 9, 2003 to October 22, 2008.

4. Entitlement to a disability rating in excess of 40 percent for service-connected head trauma residuals (traumatic brain injury/TBI) with headaches from October 23, 2008.

5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Alyson Oliver, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel


INTRODUCTION

The Veteran had active service from August 1980 to August 1983 and from October 1983 to February 1984.

These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In July 2003, the RO awarded compensation pursuant to 38 U.S.C.A. § 1151 for head trauma residuals (traumatic brain injury) with headaches.  A 10 percent disability evaluation was assigned, effective from April 9, 2003.  In April 2009, the disability evaluation was increased by the RO to 40 percent, effective from October 23, 2008.  Again, as the Veteran is in receipt of less than the maximum schedular rating for this disorder, this matter remains in appellate status.  Id.

In July 2003, the RO denied the Veteran's claim seeking compensation pursuant to 38 U.S.C.A. § 1151 for a back disorder.

In February 2006, the RO denied the Veteran's claim seeking compensation pursuant to 38 U.S.C.A. § 1151 for bilateral double vision.

In October 2009, the RO denied the claim concerning entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).

A hearing was held in March 2011 in Waco, Texas before Kathleen K. Gallagher, a Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case.  A transcript of the hearing testimony is in the claims file.

In July 2011 and December 2014, the Board remanded this matter for additional development, to include obtaining updated VA treatment records and scheduling VA examinations and/or obtaining opinions from VA examiners.  The Board finds that this development has been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).

In correspondence received in December 2004, the Veteran stated that he was seeking service connection for his back.  In January 2005, the Agency of Original Jurisdiction (AOJ) sent him notice of how to reopen and substantiate his claim.  However, it does not appear that the claim was adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.


FINDINGS OF FACT

1. The Veteran did not incur an additional vision disability as a result of his fall on April 9, 2003 while in VA care.

2. The Veteran did not incur an additional low back disability as a result of his fall on April 9, 2003 while in VA care.

3. Prior to October 23, 2008, the Veteran's TBI did not result in residuals other than headaches.

4. Since October 23, 2008, the Veteran's TBI residuals consisted only of headaches which have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

5. Since September 30, 2015, the Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment consistent with his level of education, special training, and previous work experience.


CONCLUSIONS OF LAW

1. The criteria for entitlement to VA compensation under 38 U.S.C. § 1151 for bilateral double vision claimed as the result of a fall incurred while at a VAMC have not been met.  38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2015).

2. The criteria for entitlement to VA compensation under 38 U.S.C. § 1151 for a back disorder claimed as the result of a fall incurred while at a VAMC have not been met.  38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2015).

3. The criteria for an initial rating greater than 10 percent from April 9, 2003 to October 22, 2008, for service-connected TBI with headaches have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2015).

4. The criteria for a rating greater than 40 percent from October 23, 2008 for service-connected TBI with headaches have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2015).

5. The criteria for entitlement to a TDIU have been met since September 30, 2015.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.321, 4.16, 4.19 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, proper notice for the claim seeking compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a back disorder claimed as the result of a fall which occurred at a VAMC on April 9, 2003 was provided in June 2003, prior to the initial adjudication of the claim.  Proper notice for the claim seeking compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for double vision claimed as the result of a fall which occurred at a VAMC on April 9, 2003 was provided in July 2005, prior to the initial adjudication of the claim.

The claim for increased ratings for head trauma residuals (traumatic brain injury/TBI) with headaches stems from the disagreement with the initial evaluation assigned following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed.

Proper notice for the claim seeking entitlement to a temporary total disability rating for hospitalization from January 5, 2005, to February 2, 2005 was provided in May 2006, prior to the initial adjudication of the claim.  Another notice letter was sent in December 2006.  Proper notice of how to substantiate a claim for TDIU was issued in January 2008.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA treatment records, private treatment records and records from the Social Security Administration.  The Veteran submitted treatment records and buddy statements and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  He was afforded multiple Compensation and Pension examinations for his disabilities during the pendency of the claim.  Examinations were provided in July 2004 and April 2005 to assess the severity of the Veteran's head injuries.  Since the examiners interviewed and examined the Veteran and provided detailed symptoms pertinent to the Veteran's disability, the examination reports are adequate for rating purposes.  However, the opinions provided in the July 2004 examination report regarding the etiology of the chronic low back pain and neurological symptoms other than headaches are not adequate for rating purposes because the examiner did not support his opinions with adequate rationale.  Further, the examiner did not address the Veteran's falls on March 26, 2003 or the complaint of back pain on March 27, 2003.

In November 2005, the Veteran had a VA eye examination; however, the opinion provided in the examination report is inadequate for rating purposes.  First, the examiner did not address any imaging reports in the opinion or rationale (July 2000 computerized tomography (CT) report, April 2003 CT report, October 2004 imaging studies, or December 2004 CT report).  Second, the examiner did not address the October 18, 2004 VA treatment record, which shows complaint of double vision that transitioned to blurry vision.  

The Veteran was afforded another examination for his TBI in March 2009.  The examination report is adequate for rating purposes because the examiner reviewed the treatment records, examined the Veteran, described the symptomatology, and provided opinions supported by rationale.

The Veteran had a VA examination for his TDIU claim in September 2009.  The examiner reviewed the claims file and provided an opinion regarding the Veteran's employability.  In January 2010, the Veteran had two examinations for compensation and pension purposes of determining the severity of his TBI and severity of his headaches.  The examinations were conducted by outside providers under contract with VA.  Neither examiner indicated review of the claims file or provided a rationale for finding that symptoms other than headaches were due to the TBI.  Thus, the findings in the examination reports regarding residuals from the TBI other than headaches are not adequate for rating purposes.

He also had VA examinations in January 2012 for his headaches and TBI.  The examination report for headaches is adequate for rating purposes because the examiner reviewed the claims file, performed a thorough examination of the Veteran, and described all headache symptoms.  The TBI examination report and opinion report is adequate for rating purposes because the examiner reviewed the claims file, examined the Veteran, and provided opinions supported by rationale.

Finally, the Veteran had a VA examination for his TBI in July 2015, a VA examination for his eyes in September 2015, and a VA examination for his cervical spine to address employability in September 2015.  The examination reports and opinions are adequate for rating purposes because the examiners reviewed the claims file, examined the Veteran, described the Veteran's symptomatology, and provided opinions supported by rationale.  Opinions addressing the etiologies of the claimed vision and low back disabilities were also obtained in July 2015.  The opinion report is adequate for rating purposes because the examiner reviewed the claims file and supported the opinions with rationale.

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. 38 U.S.C.1151

The Veteran seeks service connection for a low back disability and vision impairment, including double vision, due to a fall at a VA facility on April 9, 2003.  When a veteran suffers additional disability as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability were service-connected.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.

For claims filed on or after October 1, 1997, as in this case, a claimant must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable.  See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151.

From the plain language of the statute, it is clear that to establish entitlement to       § 1151 benefits, all three of the following factors must be shown: (1) disability/additional disability, (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable.

To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the VA medical or surgical treatment to the veteran's condition after such medical or surgical treatment has stopped.  38 C.F.R. § 3.361(b).

To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability.  Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish causation.  38 C.F.R.  § 3.361(c)(1).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical or surgical treatment proximately caused a veteran's additional disability, the veteran must show that the medical or surgical treatment caused the additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the medical or surgical treatment without the veteran's informed consent.  38 C.F.R. § 3.361(d)(1)(ii).  Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b).  Id.

Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  See 38 C.F.R. § 3.361(d)(2).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

In this case, the Veteran alleges that he sustained a low back injury and developed double vision as a result of his fall from his hospital bed on April 9, 2003.

A. Double Vision

The Veteran alleges he developed double vision as a result of a fall from his bed while receiving treatment at a VA facility on April 9, 2003.  However, as discussed below, when comparing the Veteran's vision immediately prior to his fall to immediately after the fall, a vision disability is not shown to have resulted from the April 9, 2003 fall.  38 C.F.R. § 3.361(b).

Treatment records show the Veteran fell off his bed at a VA treatment facility on April 9, 2003.  See VA treatment record, April 9, 2003.  He did not report double vision.  Follow-up appointments dated between April 9 and 16, 2003 also fail to show complaints related to his vision, to include double vision.  A physical examination report dated April 16, 2003, indicates that the Veteran's vision acuity was poor.  However, double vision was not reported.  On April 30, 2003, the Veteran's vision was noted as good.

A VA radiology report indicates that the Veteran fell out of bed and hit the left side of his head on the floor on October 14, 2004.  See VA radiology report dated October 14, 2004.  The imaging studies showed no abnormalities of the skull.  A treatment record dated October 15, 2004 indicates the Veteran had been sleeping with the rails of his bed lifted because he had been falling out of bed.  The record does not mention a fall on October 14, 2004 or residuals therefrom.  A treatment record dated October 18, 2004 shows complaint of double vision in the morning that transitioned to blurry vision.  There was no notation of a fall.

The Veteran had a CT scan of his head completed on December 16, 2004.  The clinical history indicates the Veteran fell one month ago and complained of headache, blurry vision, and incoordination while walking.  The CT report was compared with a report from 2000.  No acute traumatic intracranial abnormalities were noted.  A remote fracture of the medial wall of the left orbit was observed.

On January 5, 2005, VA providers noted that the Veteran's visual acuity was good in both eyes.  Double vision was not reported.  A mental health note dated January 5, 2005 shows the Veteran reported needing glasses for reading.  He did not report double vision.  A treatment record dated January 25, 2005, indicates some vertical nystagmus on lateral gaze.

During his November 2005 VA examination, the Veteran reported having had horizontal diplopia at great distances of over 100 feet since the second fall.  The Veteran said the condition started in November 2004 while in the Dallas VAMC.  He also complained of stinging and tearing after reading.  The examiner diagnosed divergence insufficiency versus divergence palsy (horizontal diplopia at distance only, monocular at near) and found that the condition could be secondary to bilateral 6th nerve palsies which are frequently due to trauma.

An April 2006 VA treatment record shows diplopia at a distance and symptomatic presbyopia.  The provider did not indicate a relationship between the diagnoses and the April 2003 fall.

No vision complaints were reported on August 20, 2010.  He also denied having problems with his eyes during his mental health appointment that same day.

During his March 2011 hearing before the Board, the Veteran testified that when he fell in April 2003, he started to have double vision.  He stated that he sought treatment that day and that the doctor found something related to a vein in the back of the left eye.  He said the double vision started a week after his fall and comes and goes.  

During an August 14, 2013 appointment, the Veteran reported vertical and horizontal binocular diplopia.  He said he initially had diplopia in 2003 and that the condition had been present since 2003.  He indicated that he had had similar symptoms with minimal to no change since 2003.  He reported that diplopia was present at all times; however, the provider noted that past clinic notes documented that he did not have diplopia.  See also VA treatment record August 24, 2012 (the provider noted that the Veteran denied diplopia during his last visit).

The Veteran's claims file was reviewed by a VA examiner in July 2015.  The examiner indicated that he thoroughly reviewed all records in the electronic claims file.  He noted the Veteran's fall in April 2003 and observed that the only complaints of record at that time were headache and incoordination.  A CT scan of the head appeared to reveal a questionable finding which was thought to reflect the Veteran's 13-year history of cocaine abuse.  However, a magnetic resonance imaging (MRI) scan of the brain was interpreted as normal in April 2003.  The examiner stated that this test result suggests that the apparent "finding" actually represented artifact.  The examiner said the Veteran had an MRI of the brain in 2010, which was also interpreted as being normal.  The examiner noted that the Veteran had a neurological evaluation on April 23, 2003 but did not mention diplopia or low back pain.

The examiner observed that in October 2004 the Veteran volunteered that he had been falling out of bed recently.  The examiner stated that the reported falls appear to have been prior to his hospitalization and believed the skull x-rays were obtained because of a complaint of headache.  He did not believe that there was a complaint of a fall out of bed at the time that the x-rays were done.  Instead, x-rays were taken because of the history of headache and because of the history of falling out of bed.  The x-rays were unremarkable.  A CT scan of the head was performed in December 2004 because of continued headaches and diplopia.  The scan was unremarkable.  The examiner concluded that the Veteran provided a history of repeated falls out of bed and a sleep study was pending because of this history. 

The examiner pointed out that the Veteran first complained of double vision on October 17, 2004, when he was seeing double on the television.  The examiner found no evidence to suggest that the Veteran suffered injury from treatment received at the VA facility.  He also did not find evidence to support a finding of carelessness, negligence or errors in judgment or finding evidence that the care provided might be considered other than standard of care in the case of this patient.

The Veteran had a VA examination in September 2015.  The examiner provided a detailed summary of the Veteran's vision complaints since April 2003.  The examiner noted that the Veteran had fallen out of bed on April 9, 2003 while at a VA facility and that an April 13, 2003 clinic note indicates that he had been transported for evaluation and a CT scan of the head.  Examinations at the time of the fall revealed no lacerations or abrasions.  The Veteran had a contusion to the head and the neurological examination revealed no abnormalities.  The CT scan of the brain without contrast revealed a hematoma on the anterior right forehead but no skull fracture or extra-axial fluid collection was identified.  The Veteran was seen daily for the next few days but no further pathology was noted.  Diplopia or other vision problems were not reported.  The examiner cited a December 2003 treatment record which notes the Veteran's history of cocaine dependence, substance-induced mood disorder, and a history of a possible sleep disorder with multiple falls out of bed since April 2003.  In December 2004, the Veteran's provider noted that he had a problem with repeatedly falling out of bed.  The examiner addressed the December 2004 CT report, which indicated that both orbits were normal with a remote fracture of the medial wall of the left orbit.  The examiner explained that the term "remote" in this context meant old and that a medial wall orbital fracture, as opposed to an inferior floor fracture, would not cause an extra ocular muscle entrapment or diplopia, and in this case, the implication is that it has healed.  The examiner opined that this observation fails to provide support for a claim of diplopia from head trauma in 2003.

The examiner also noted that during a February 2005 emergency room examination, the Veteran's extraocular muscles exam was normal with no mention of paresis or diplopia.  The Veteran also did not complain of diplopia during a March 2007 neurology consultation appointment.  He denied blurred vision, tearing or vision loss in March 2008.  The examiner mentioned the June 2006 eye examination, which indicated that extraocular motility was full with no phoria, tropia, or diplopia.  The examiner observed that a January 2009 eye technician note states that contrary to the Veteran's assertions, his glasses were not prescribed for and would not treat diplopia.  The examiner acknowledged the Veteran's report of diplopia documented in the March 2009 TBI examination report.

The examiner also addressed the Veteran's testimony provided in March 2011, during which he endorsed persistent symptoms of double vision claimed as due to a vein in the back of the left eye.  The Veteran reported that his symptoms would come and go; however, the examiner stated that the Veteran's reported symptoms are inconsistent with inferior rectus entrapment from an orbital fracture.  The latter would be constant.

The Veteran reported that his current subjective symptoms included seeing double in the left eye, or occasional monocular diplopia.  No diplopia was present during the examination.  Testing was normal.  The examiner stated that the Veteran's affect often appeared inappropriate and that his effort was suspect.  For example, when asked to follow a pen light moving to the left, the Veteran looked straight ahead in primary gaze as though he could not look to the left.  However when the examiner pointed to the left quickly and said "look at that," both eyes rotated to extreme left gaze instantaneously.  The examiner failed to identify either diplopia or monocular diplopia and concluded that the Veteran did not exhibit any objective sign of double vision.

In the opinion, based on the findings during the examination, the examiner opined that there has been no objective confirmation of a permanent disability related to, associated with or caused by the 2003 fall from bed at the VA facility.  The examiner also stated that no objective evidence exists which shows a permanent disability such that aggravation might be contemplated.  The examiner stated that even if the Veteran did have a chronic disability of double vision, which has not been substantiated, he fell out of bed numerous times per his medical provider, presumably in multiple locations, and has fallen down in other circumstances also, making it impossible to determine from which event the proposed disability would have resulted.  From the history, the physical examinations, and the imaging, the examiner stated that it is very unlikely, to a probability of far less than 50 percent that any visual disability arose from a fall out of bed in 2003 or 2004 at a VA facility.  After an exhaustive records review, the examiner found no objective evidence to support a claim that the custodial care and medical care provided to the Veteran at the VA was any less than exemplary.  It was well within the community standard of care and there was specifically no carelessness, negligence, lack of proper skill, error in judgement or similar instance of fault in the provision of care to the Veteran.  The examiner stated that it is clear VA did not fail to exercise the reasonable care expected of a health care provider and that VA did not provide treatment without appropriate and proper informed consent.

Based on the foregoing, the Board cannot find that the Veteran sustained an additional vision disability, such as diplopia, as a result of the fall from his bed on April 9, 2003 while at a VA facility.  As discussed above, the records do not show report of double vision until almost 18 months after his fall.  The Board has considered the Veteran's lay statements, and while he is competent to report his double vision, the Board finds his statements not credible.  Importantly, while the Veteran testified that he began having diplopia immediately after the April 2003 fall, he failed to report this symptom until October 2004.  Treatment records show he was seen multiple times in the days following his fall for follow-up treatment and that he had several medical appointments in the months thereafter.  He had multiple opportunities to report diplopia or other vision concerns; however, according to the treatment records, he did not report having double vision until October 2004.  Consequently, the Board finds the Veteran's statements regarding the onset of his disability and its relationship to the fall not credible.

The Board finds the September 2015 examiner's opinion highly probative of this matter.  The examiner thoroughly reviewed and summarized the Veteran's treatment records and found the Veteran did not develop a vision disability, such as diplopia, due to the April 9, 2003 fall.  His opinion is supported by rationale.  While treatment records have noted the Veteran's reports of having diplopia as a result of his April 9, 2003 fall, the records do not show an independent opinion from a medical provider indicating a nexus between the reported vision disability and fall.  Simply, no medical providers have opined that the Veteran's reported vision problems are a result of the April 9, 2003 fall and the Veteran, as a layperson, is not competent to opine that any current vision disability is a result of the fall.

Accordingly, as no additional vision disability was caused by the April 9, 2003 fall, compensation under 38 U.S.C.A. § 1151 is not warranted.  As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied.

B. Low Back

The Veteran seeks compensation under 38 U.S.C.A. § 1151 for a back disability resulting from a fall on April 9, 2003 while being treated at a VA facility.  VA treatment records dated in 1997 show treatment for low back pain.  VA treatment records dated March 27, 2003, indicate that the Veteran complained of low back pain.  Notably, this was before his fall on April 9, 2003.  Treatment records show he fell out of bed on April 9, 2003 and that he reported a history of having nightmares and falling out of bed.  He reported neck pain and dizziness when rotating his head.  He also had tenderness over his trapezius.  He did not report low back pain.  Low back pain was noted on April 14, 2003 and May 1, 2003.

The Veteran had a VA neurology examination in July 2004.  The Veteran said he had had low back pain since his fall in April 2003.  The examiner diagnosed chronic low back pain with a normal neurological examination.  The examiner noted that while the Veteran reported that his back pain started at the time of his fall, the medical records did not show a history of a back injury at that time.  The examiner said he did not believe that any back pain the Veteran had was related to the fall.

VA treatment records dated March 2005 show the Veteran had x-rays of his spine.  The films showed a transitional vertebra with partial lumbarization of the S1.  Otherwise the vertebral bodies and disk spaces were within normal limits.

In January 2006, the Veteran had films of his spine taken, which showed large hypertrophic spurring in the left L5-Sl facet joint and spurring in the superior aspect of the left SI-joint.  The provider noted possible degenerative joint disease, unchanged since the last examination.

In March 2006, the Veteran sought treatment for back pain.  He reported that he fell in January 2006 and hurt his back.  The x-rays showed spurring and degenerative joint disease.  The assessment was lumbar spondylosis and low back pains.  Neither the provider nor the Veteran related the condition to his fall in April 2003.

In March 2007, the Veteran had a neurosurgery consultation for his low back condition.  While he reported that it was due to the fall in April 2003, the provider did not link the fall with his current back condition.  See VA treatment record dated March 20, 2007.

During his March 2011 hearing before the Board, the Veteran testified that he hurt his back during the April 2003 fall and had pain when bending over.  He said he reported the back pain at the time of the fall but that his doctors did not document his complaint.

The Veteran's claims file was reviewed by a VA examiner in July 2015.  The examiner indicated thorough review of the electronic claims file.  He noted the April 2003 fall and observed that the only complaints of record at that time were headache and incoordination.  The Veteran had a neurological evaluation on April 23, 2003, and at that time, the Veteran did not mention low back pain.  The examiner pointed out that the records document chronic low back pain since 1980 and show the Veteran was enrolled in a program for his low back pain in 1997. 

The examiner opined that it is unlikely that the episode of falling out of bed in April 2003 relates to the reported low back pain, which was documented to be present 20 years prior to the fall.  He stated that the low back pain represented mechanical low back pain.  The examiner also indicated that the fall did not cause spondylosis in the lumbar spine as spondylolisthesis is a slow and gradual wear and tear response by the body and does not occur as a result of an episode of trauma.

The examiner found no evidence to suggest that the Veteran suffered injury from treatment received at the Veterans Administration Hospital.  He also found no evidence to support a finding of carelessness, negligence or errors in judgment or a finding that the Veteran received care which might be considered other than standard of care.

The Board has reviewed all of the evidence but finds the medical evidence does not show that the Veteran sustained a low back disability as the result of his fall in April 2003.  He did not report a low back injury at the time of the fall and only noted low back pain days after.  Notably, the medical records show a history of back pain and indicate that the Veteran had complained of back pain just days prior to the fall.  Moreover, the none of the medical evidence shows that the fall resulted in a chronic disability or that he otherwise has a back disability due to the fall.  Importantly, after a thorough review of the records, the July 2015 VA examiner did not find that the evidence supported a finding that the Veteran sustained an additional low back disability from the April 2003 fall.

The Board has considered the Veteran's lay statements regarding the incurrence of an additional disability due to the fall in April 2003.  The Veteran is competent to report symptoms such as pain and the date pain manifested.  However, in this case, his statements regarding the date of onset of his low back pain are not credible.  As discussed above, the Veteran complained of low back pain in 1997 and just days prior to his fall, thus, his argument that back pain did not start until he fell on April 9, 2003, is not credible.

Consequently, the Board finds that the medical evidence is more probative as to whether the Veteran sustained a low back injury as a result of his fall while in VA care on April 9, 2003.  Here, the evidence shows the Veteran had low back pain prior to the fall and subsequent to the fall, with no chronic disability or injury resulting from the fall.  Accordingly, without an additional disability due to VA treatment, the claim for compensation pursuant to 38 U.S.C.A. § 1151 must be denied.

As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49.

III. Increased Ratings

The Veteran seeks increased ratings for head trauma residuals (traumatic brain injury (TBI)) with headaches.  Disability ratings are determined by applying the criteria set forth in 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 (West 2014); 38 C.F.R. Part IV (2015).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered 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 in reaching its decision.  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 Veteran's service-connected TBI with headaches is evaluated as 10 percent disabling from April 9, 2003, to October 22, 2008 and 40 percent from October 23, 2008 under 38 C.F.R. § 4.124a, Diagnostic Code 8045-9304.  See 38 C.F.R. §§ 4.124a, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2014).

The criteria for evaluating a TBI were revised during the pendency of this appeal.  See 73 Fed. Reg. 54693 (Sept. 23, 2008), and the effective date for these revisions is October 23, 2008.  See also 38 C.F.R. § 4.124a, Note (5).  Note (5) to § 4.124a also states that a Veteran may request review under the new regulations and a rating under the revised criteria will not have an effective date prior to October 23, 2008.

The rating criteria in effect prior to October 23, 2008 provide 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 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 Diagnostic Code 9304 are not assignable in the absence of multi-infarct dementia associated with brain trauma.  38 C.F.R. §§ 4.124a, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008).

Revised Diagnostic Code 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.  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 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, 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.

The current version of 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.

Note (5): A Veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review.  VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045.  A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008.  For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR § 3.114, if applicable.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (2015).

Prior to addressing the severity of the Veteran's head trauma residuals with headaches, the Board finds it must determine which symptoms other than headaches are actual residuals of the TBI sustained on April 9, 2003.

As noted in the December 2014 remand order, the evidence shows that prior to the TBI in April 2003, the Veteran complained of headaches, short and long term memory loss, and occasional dizziness.  See VA treatment records dated March 27, 2003 (headaches, short and long term memory loss, and occasional dizziness) and April 2, 2003 (dizzy).  See also VA treatment record dated April 14, 2003 (summarization of the Veteran's medical history since March 26, 2003 including complaints of balance problems; neck and head pain; slurred speech; and difficulty word finding).

The majority of the evidence dated from April 2003 until January 2010 shows that the only residual of the TBI is headaches.  For example, a June 2003 VA treatment exit note indicates that the Veteran was not suffering any cognitive or neurological impairment from the April 2003 fall.  He showed no evidence of physical or neurological impairment while participating in the work therapy component of a rehabilitation program.  He was able to work at a variety of jobs with no complaints.  He kept pace with other workers, was able to complete complex tasks with no difficulty, and in general was considered to be a reliable and consistent worker.  The July 2004 VA examiner opined that chronic recurring headaches were as likely as not related to the fall but that neurological symptoms including balance problems and dizziness were more likely than not a result of the Veteran's long history of polysubstance abuse and permanent neurological damage secondary to that abuse.  The October 2004 psychology-neuropsychology report shows the Veteran had significant visual spatial deficits along with immediate and long-term verbal memory impairments.  The provider stated that the neuropsychological evaluation was consistent with an individual with extensive polysubstance abuse history.  On January 7, 2005, the provider observed that testing completed in October 2004 revealed cognitive deficits in multiple areas but that the changes were felt to be secondary to polysubstance abuse.  On January 25, 2005, the Veteran had a neurology consultation during which the provider found no neurological findings from the fall.  The April 2005 VA examiner found moderate posttraumatic headaches with toxic encephalopathy secondary to cocaine and alcohol dependence.  The March 2009 VA examiner noted the Veteran's subjective neurological complaints, to include but not limited to dizziness, vertigo, sleep disturbance, fatigue, concentration and memory problems, and headaches.  The examiner diagnosed TBI, mild, and stated that the headaches are as likely as not related to the TBI while his other symptoms are likely related to his other medical and psychiatric conditions.  Notably, none of these providers or reports indicates that the Veteran had residuals from his TBI other than headaches.  The providers specifically related his other neurological abnormalities to his history of substance abuse.

On the other hand, a March 7, 2006 note from Dr. O.P. and January 8, 2008 letter from Dr. L.J., both indicate that the Veteran had memory problems and headaches after brain trauma with concussion.  See VA treatment note dated March 7, 2006; letter from Dr. L.J. dated January8, 2008.  Notably, the providers did not indicate review of the claims file or support the finding of residuals other than headaches with rationale.  

Further, as of January 2010, the evidence suggests possible residuals of the TBI other than headaches.  For example, in January 2010, an examiner contracted by VA to conduct the examination diagnosed cognitive impairment, tension type headaches, sleep disturbance, dizziness, blurred vision, bilateral hearing loss and constant tinnitus, erectile dysfunction, orthoscopic hypertension, and seizures status post CVA.  The examiner was unable to determine if each diagnosis was secondary to the TBI because of the recent CVA affecting the left side.  However, the examiner found that the cognitive disorder was secondary to the TBI.  Notably, the examiner did not address the Veteran's extensive history of polysubstance abuse.  The January 2010 examiner contracted to perform the cognitive and psychiatric evaluation found that the subjective symptoms most likely related to TBI were balance and coordination problems; falls; and concentration and focus symptoms that were denied prior to the TBI.  The examiner found no connection between TBI and psychiatric symptoms or a connection between substance abuse behaviors and TBI/cognitive symptoms.  Neither examiner indicated review of the claims file or provided a rationale for finding that symptoms other than headaches were due to the TBI. 

Per the Board's December 2014 remand order, a VA examiner was asked to review the claims file and identify residuals of the TBI other than headaches.  The examiner was specifically asked to address the symptoms noted in the January 2010 examination report: cognitive impairment, sleep disturbance, dizziness, blurred vision, bilateral hearing loss and constant tinnitus, erectile dysfunction, orthoscopic hypertension, and seizures status post CVA.  Pursuant to the Board remand, the Veteran had a VA examination in July 2015.  The examiner noted that TBI was diagnosed in 2003 and observed significant cognitive impairment as a result of multi-substance abuse and stroke.  He also stated that the Veteran could not make a sound decision as a result of multi-substance abuse and stroke.  The Veteran had limited interaction with family or friends.  He could not tell the day of the week or the date due to of multi-substance abuse and stroke.  Subjective symptoms included headaches, depressed mood, anxiety, poor sleep, and dizziness as a result of multi-substance abuse and stroke.  The examiner observed lack of motivation, dysarthria, and occasional stuttering as a result of multi-substance abuse and stroke.  The examiner opined that the Veteran did not have residuals from his TBI.

In the separate opinion report, the examiner stated that none of the Veteran's medical records documented objective evidence that he had ever had an alteration or loss of consciousness, nor had he had retrograde or post-traumatic amnesia during or soon after the fall.  The examiner stated that TBI was diagnosed primarily based on a clinical noted dated April 14, 2003.  The examiner stated that all neurological examinations were grossly normal in a series of medical evaluations after the injury in 2003 and that there was no imaging evidence of acute trauma in the brain by CT and MRI.  He indicated that the Veteran was given the benefit of the doubt in terms of the TBI diagnosis and that the severity of the TBI was mild at most.  He stated that there is limited and insufficient medical evidence that the following conditions can be can caused by a mild concussion: cognitive impairment, sleep disturbance, dizziness, blurred vision, bilateral hearing loss and constant tinnitus, erectile dysfunction, orthoscopic hypertension, and seizures status post CVA.

The examiner indicated that follow-up studies of unselected patients after mild TBI demonstrated small measurable deficits on neuropsychological testing.  He stated that cognitive domains appearing particularly vulnerable to the effects of head injury included attention, working memory, processing speed, and reaction time.  He said deficits generally mild and gross deficits of intelligence and memory are not associated with mild TBI.  Abnormalities are most prominent in the first week after TBI and disappear over time.  At three months, patients with mild TBI as a group perform similarly to control subjects.  He indicated that there is convincing evidence that multi-substance abuse, stroke, and aging process can all cause cognitive impairment, sleep disturbance, dizziness, blurred vision, bilateral hearing loss and constant tinnitus, erectile dysfunction, orthoscopic hypertension, and seizures status post CVA.

Based on the examination report and in conjunction with the vast majority of the evidence, the Board finds that evidence overwhelmingly indicates that the Veteran's TBI residuals manifest only as headaches.  The Board observes that Dr. O.P., Dr. L.J., and the January 2010 examiners attributed additional symptoms to the TBI; however, these providers did not review the claims file, address the Veteran's significant history of substance abuse, address prior findings that symptoms other than headaches were due to polysubstance abuse, or provide a rationale for finding that the Veteran had residuals other than headaches.  Further, the providers did not address the symptoms noted prior to the fall, including short and long term memory loss and occasional dizziness.  

The Board also considered the Veteran's lay statements alleging that symptoms other than headaches were due to the April 9, 2003 fall; however, the Veteran is not competent to opine as to the etiology of his multiple symptoms because as a layperson, he is not competent to differentiate between symptoms related to the TBI versus those due to polysubstance abuse or other causes.  Further, his report of symptoms due to the TBI is not credible because he complained of several of the same symptoms immediately prior to the April 2003 fall that he later attributed to the TBI.  

The Board also considered the buddy statements submitted on the Veteran's behalf, such as the June 2004 statement from J.D.  However, the statements from lay persons are not probative of the claim as the "buddies" submitting the statements have not indicated medical expertise and as laypersons, are not competent to opine as to the etiology of any observed symptoms.  Accordingly, the Board finds that the evidence overwhelmingly shows that the only residual from the TBI is headaches and accordingly, the Board will review the severity of the Veteran's headaches to determine whether increased ratings are warranted for his service-connected TBI residuals.

A. Increased Rating from April 9, 2003 to October 22, 2008

On May 5, 2003, the Veteran reported having had constant headaches since his fall.  

The Veteran had a VA neurology examination in July 2004.  He reported neck pain, dizziness, poor balance, and headaches.  The examiner observed that the Veteran had a long history of psychiatric problems including depression, paranoia, polysubstance abuse, and alcoholism.  The examiner addressed the CT and MRI scans completed after the Veteran's fall.  Regarding the focal lucency in the right cetrosylvian white matter that was observed on the CT scan, the examiner stated that this brain change is commonly seen in people who abuse cocaine.  The Veteran stated that since the fall, he had had headaches that occurred in the right and left temporal area and sometimes in the occipital area and were associated with nausea.  He would take medication to treat his headaches.  He indicated that his employment was as a driver of long haul tractor-trailers.

The examiner diagnosed chronic recurring headaches that are as likely as not related to the fall but do not have the characteristics of migraines.  The examiner noted neurological symptoms including balance problems and dizziness and the abnormal CT scan showing findings commonly found in cocaine abusers and opined that these other neurological symptoms are more likely than not a result of the Veteran's long history of polysubstance abuse and permanent neurological damage secondary to that abuse.

A September 2004 note indicates complaints of ongoing dull headache which had not varied in degree of pain since the fall.  In October 2004, the Veteran had a psychology-neuropsychology assessment and reported continued headaches.  During an initial nursing assessment, also dated in October 2004, the Veteran described headaches that were constant, aching or throbbing.

In December 2004, the Veteran reported left sided headache and that he had had chronic headaches since hitting his head in 2003.  See VA treatment record dated December 15, 2004.  The assessment was headache.

A January 5, 2005 VA mental health note shows the Veteran reported headaches.  During a January 25, 2005 neurology consultation, the Veteran reported neurological problems due to the April 2003 fall.  The provider observed that the MRI and neurology consultation revealed no neurological findings from that fall.  He also reported having migraines that started at the top of his head and included both sides.  He stated that the headaches were constant.

In March 2005, the Veteran reported frequent headaches.  Also reported was tinnitus, hearing loss, slurred speech, nightmares, photophobia, double vision, and balance problems claimed as due to the April 2003 TBI.  He said he was unconscious for a few minutes after the fall.  The provider noted a history of malingering and that the Veteran's reported bilateral hearing loss was not consistent with head trauma.  Further, the provider stated that head trauma with no motor or sensory component other than visual and auditory is highly unlikely.  The provider also indicated that head trauma from falling out of bed with minimal loss of consciousness is also highly unlikely.

In April 2005, the Veteran had a VA examination.  The Veteran complained of daily headaches that lasted 2 to 3 hours.  The Veteran took medication for his headaches which would dull, but not eliminate the pain.  The Veteran reported that he fell out of bed again in October 2004 and said he had had double vision since that time.  The impression was moderate posttraumatic headaches with subjective progression as well as toxic encephalopathy, secondary to cocaine and alcohol dependence dating to January 2005.

A March 7, 2006 VA neurology consultation note indicates that the Veteran had chronic headaches which were sometimes tension type and sometimes had a throbbing component.  On March 27, 2006, the Veteran reported that his headaches were a 7 on the pain scale.

In April 2006, the Veteran complained of pain, with headaches rating a 9 on the pain scale.  He indicated that he was unable to concentrate due to the pain.  His headache had been constant but had worsened in the last 3 days.

The Board has reviewed all of the evidence for the period prior to October 23, 2008, but finds a rating in excess of 10 percent is not warranted for the Veteran's TBI with headaches based on subjective reports of headaches.  Under the old criteria for rating TBI, purely subjective complaints such as headache, will be rated 10 percent and no more under Diagnostic Code 9304.  38 C.F.R. § 4.124a.  The Board observes that the Veteran has complained of multiple other symptoms; however, as discussed above, the medical records attribute his other symptoms to his substantial history of substance abuse.  Consequently, the Board finds that the only residual from the Veteran's TBI during this period was his headaches and per 38 C.F.R. § 4.124a, Diagnostic Code 8045-9304, a rating in excess of 10 percent is not warranted for headaches.  Accordingly, the evidence being against the claim, the claim for an initial rating in excess of 10 percent for TBI is denied.

B. Increased Rating from October 23, 2008

The Veteran seeks a rating in excess of 40 percent from October 23, 2008.  As discussed above, the rating criteria for TBI was changed, effective October 23, 2008 and the Veteran's remaining residual from his TBI has been identified as headaches.  Per the new TBI criteria, Diagnostic Code 8045 provides that any residual with a distinct diagnosis must be rated separately, to include migraine headaches, even if the diagnosis is based on subjective symptoms.

The Board finds that the Veteran's residual headaches from his TBI are analogous to migraine headaches and should be rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under Diagnostic Code 8100, migraines are evaluated as follows: a non-compensable 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 evidence shows that in February 2009 that the Veteran reported worsening headaches.  His pain rated an 8 on the pain scale and radiated down his neck to the arms.  See VA treatment record dated February 24, 2009.

In March 2009, the Veteran had a VA examination for his head injury.  He reported that his headaches were constant and moderate in severity.  He reported pain in the occipital area, more on the left side.  The pain was aggravated with certain neck movements.  The examiner diagnosed TBI, mild, and stated that the headaches are as likely as not related to the TBI while his other symptoms are likely related to his other medical and psychiatric conditions.

In July 2009, the Veteran reported that his headaches were intermittent and rated a 6 on the pain scale.  He described tension in the back of his head radiating to the front.  His headaches worsened with exposure to loud noises and stress.

The Veteran had a VA examination in January 2010 for his headaches related to his TBI.  He reported having severe headaches daily that lasted most of the day, and had characteristics of tension-type headaches.  With his headaches, he had hypersensitivity to light and sounds, irritability, restlessness, morning sweats, and thyroid problems.  The examiner diagnosed tension type headaches.  

The Veteran also had a cognitive and psychiatric evaluation in January 2010 with a contracted facility.  The examiner indicated that the Veteran's headaches required rest periods most days and moderately interfered with work, activities of daily living, and/or relationships.

In support of his claim, the Veteran submitted buddy statements.  A statement dated January 2010 indicates that F.T.P. observed the Veteran's balance problems.  A January 2010 statement from J.L.H. indicates that she was the Veteran's care taker and helped him with his activities of daily living.  A statement from E.H., received in October 2010, indicated that he observed the Veteran's constant twitching of the face and right eye, and shaking of the hands.  He also noted that the Veteran's balance and coordination was off.  However, as discussed above, the Veteran's residuals of TBI have been identified as headaches.  Moreover, the "buddies" are laypersons with no medical training and are not competent to relate his symptoms to his April 2003 TBI.  Therefore, these buddy statements have no probative value.

A treatment record dated February 18, 2011 shows that the Veteran was being followed by neurology for his memory and motor impairments.  The provider noted questionable underlying degenerative disorder or hereditary ataxia and indicated that neurology felt this was unlikely due to his history of TBI.

During the March 2011 hearing, the Veteran testified that he could not keep focused and had memory problems.  He indicated that he had problems talking on the telephone and trouble following conversations.  He reported dizziness and said he required a motorized chair because his doctors did not want him falling again.  He felt his symptoms were getting worse.  Regarding headaches, he testified that he had daily headaches and at times has to retreat to a quiet and dark room.  He reported that he was sensitive to light and the sun when he had headaches.  He testified that his headaches and other TBI symptoms prevented him from performing activities of daily living, including dressing himself, bathing, and exercising.

Treatment records dated March 2011 show continued complaint of daily headaches.

In January 2012, the Veteran had a VA examination for his headaches.  He reported daily headaches located on the left side of his head, constant pain, photophobia, and dizziness and balance problems.  He denied having phonophobia, nausea or emesis.  The Veteran's treatment plan included taking butalbital, caffeine, and Tylenol.  The examiner noted the following symptoms: constant head pain, pain localized to one side of the head, pain worsens with physical activity, sensitivity to light, changes in vision, dizziness, and balance problems.  The Veteran's typical head pain lasted 2 to 3 hours.  The examiner stated that the Veteran did not have typical prostrating headaches or classic migraine headaches.  The Veteran reported that he had a headache at the time of his examination.  The examiner observed that the Veteran did not appear to be in severe pain during the examination.  As such, the examiner opined that the headaches would not prevent the Veteran from working.  The examiner noted that the Veteran presented in a wheelchair and that he reported problems with balance with his headaches.  The examiner said the Veteran may need accommodations for his history of balance problems and dizziness associated with the headaches.  The Veteran reported that he stopped working in 2004 as a truck driver due to having audio and visual hallucinations.  The examiner noted the Veteran's history of substance abuse and stated that there may certainly be more than one etiology for the hallucinations.

The Veteran had a separate examination for TBI in January 2012.  The examiner diagnosed headaches as a residual of the TBI.  The Veteran reported headaches, memory problems, and poor balance.  The examiner indicated that the Veteran had motor dysfunction and headaches.  Per the Veteran's report, the examiner found that the TBI and residuals impacted the Veteran's ability to work.  The examiner opined that it is at least as likely as not that the Veteran was unable to obtain and maintain substantially gainful employment due to his medical condition, but not necessarily because of service-connected TBI.  The examiner observed that the Veteran was diagnosed with TBI in 2003 but that he had been complaining of poor balance since 2000, according to a head CT scan done at that time.  The Veteran also had substance abuse problems for years prior to the TBI, including alcohol and cocaine abuse.  The examiner observed that the Veteran had a neurology evaluation back in 2003 because of the head injury without residuals and that his Romberg test had been positive since 2004.  For that reason, the examiner concluded that the Veteran's nonservice-connected condition, residuals of ethanol and cocaine abuse, is more likely the cause of his imbalance problem than his mild TBI in 2003.

In a March 19, 2014 VA treatment record, the note indicates that the Veteran's TBI was causing difficulties with remembering, concentrating, and organization.  However, the provider did not address the Veteran's polysubstance abuse or provide a rationale for finding additional residuals other than headaches related to TBI.

The Veteran had a VA examination in July 2015.  The examiner noted that TBI was diagnosed in 2003.  The examiner observed significant cognitive impairment as a result of multi-substance abuse and stroke.  Subjective symptoms included headaches.  The examiner opined that the Veteran did not have residuals from his TBI.

The Board has considered all of the evidence but finds that a rating in excess of 40 percent is not warranted from October 23, 2008.  For a 50 percent rating under Diagnostic Code 8100, the evidence must show that the Veteran has had very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability.  In this case the Veteran has not contended and the evidence does not otherwise show that his headaches involved completely prostrating and prolonged attacks productive of severe economic inadaptability.  He described pain and the January 2010 examiner said the Veteran required rest each day due to headaches; however, the examiner did not indicate that the headaches were completely prostrating and prolonged attacks productive of severe economic inadaptability.  The Veteran testified before the Board that at times he had to retreat to a quiet and dark room.  He stated that he was sensitive to light and the sun when he had headaches.  However, he did not testify that his headaches alone were completely prostrating and prolonged attacks productive of severe economic inadaptability.  Additionally, the January 2012 examiner found that the Veteran did not have typical prostrating headaches or classic migraine headaches.  Accordingly, after considering all of the evidence, the Board cannot find that the Veteran's TBI residual of headaches causes completely prostrating and prolonged attacks productive of severe economic inadaptability.  As such, a rating in excess of 40 percent is not warranted from October 23, 2008 for TBI with headaches.

IV Extraschedular Rating

The Board must also consider whether referral for an extraschedular rating for the Veteran's TBI with headaches is warranted.  Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2015).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2015). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the noncompensable rating inadequate.  The Veteran's disability was rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8045 and 8100 for rating TBI, with consideration of the old and revised TBI rating criteria, which specifically contemplate the level of severity caused by this disability.  The Veteran has submitted no evidence showing that his TBI with headaches alone has markedly interfered with his employment status beyond that interference contemplated by the assigned staged evaluations and there is no indication that this disorder has necessitated frequent periods of hospitalization during the pendency of this appeal.  Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.124a, Diagnostic Code 8045 and 8100.

IV. TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a "substantially gainful" occupation (i.e. work which is more than marginal, that permits the individual to earn a "living wage," 38 C.F.R. § 4.16(b) (2014); Moore v. Derwinski, 1 Vet. App. 356 (1991), as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).  In determining whether the schedular threshold is met, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor if applicable, are considered one disability.  Id.  Disabilities resulting from common etiology or affecting a single body system are also considered one disability.  Id.

Under section 4.16(b) of VA regulations, when a claimant fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the RO may submit such case to the Director, Compensation and Pension Service (Director), for extraschedular consideration.  38 C.F.R. § 4.16(b).  The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director.  Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, but the Board may not grant a total rating in the first instance.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board.  Moreover, where there has been a review by the Director, that determination is subject to review by the Board on appeal.  Anderson v. Shinseki, 22 Vet. App. 423, 277-28 (2009) (noting that "although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal.").

Entitlement to a TDIU requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). 

In this case, the Veteran is service connected for residuals of a TBI with headaches, neck strain, and radiculopathy of the bilateral upper extremities.  His disabilities are from a common incident, the April 2003 fall, and as such his injuries are considered a single disability.  

Since March 19, 2009, the Veteran's combined disability rating has been at least 60 percent for his TBI with headaches and neck strain, thus meeting the initial threshold for consideration of a TDIU.  Service-connection for radiculopathy of the upper extremities was not granted until January 12, 2012.  At that time, his disability rating was increased to 80 percent.  The question remains as to whether the Veteran's service-connected disabilities, with consideration of his level of education, special training, and previous work experience, have rendered the Veteran unable to obtain and maintain substantially gainful employment.

Here, the Board finds that a TDIU is not warranted prior to September 30, 2015.  The evidence does not show that his service-connected disabilities alone, with consideration of his level of education, special training, and previous work experience, rendered him unable to obtain and maintain substantially gainful employment prior to this date.  

Here, the evidence shows the Veteran was employed until at least July 2004.  Further, the July 2004 VA examination report for the cervical spine shows the examiner found the Veteran's neck pain did not keep him from his usual occupation or limit his daily activities.   In February 2005, the Veteran reported that he was unable to work due to balance problems caused by his fall in April 2003.  However, his balance problems have not credibly been linked to the April 2003 fall and as such, are not related to a service-connected disability.  

A January 2008 letter from VA provider Dr. L.J. states that the Veteran was unemployable; however, the opinion was based on service and non-service connected disabilities

During the September 2009 VA examination, the examiner stated that the Veteran was not unemployable due to the effects of his service-connected head injury.  Regarding the neck injury, the examiner indicated that the Veteran's physical exam was unremarkable and opined that the Veteran was not unemployable due to his cervical spine.

A letter from Dr. M.R. dated October 2009 indicates that the Veteran was disabled due to pain, paranoid schizophrenia, and hypertension.  However, because the opinion considered non-service-connected disabilities, the opinion has no probative value.

A December 2009 note from a VA provider indicates that the Veteran was disabled from his PTSD and neck and back pain.  Again, because the finding was based on non-service-connected disabilities, the opinion has no probative value.

The Board observes that the January 2010 VA examiner found that the Veteran's cervical spine disability had moderate effects on occupation and daily activities.  The Veteran reported constant flare-ups of the neck disability which prevented him from participating in activities; however, the examiner stated that the Veteran had not had incapacitating episodes due to the spine in the past 12 months.  

During the January 2010 TBI examination, the examiner noted that the Veteran was unemployed and said the Veteran attributed his lack of employment to his TBI.  The Veteran said he could not drive trucks because of problems with focus and balance and his medications.  The examiner was unable to determine the impact of the TBI on his occupation and activities of daily living without resort to speculation due to the CVA.

In October 2010, the Veteran had a consultation with a psychologist-neuropsychologist.  The Veteran indicated that he stopped working as a truck driver in 2004 due to visual hallucinations and tremors.  

During the January 2012 TBI examination, the examiner found that the headaches the Veteran described would not prevent him for working.  The examiner opined that the Veteran was unable to obtain or maintain a substantially gainful employment due to his current medical condition, but not necessarily because of service connected brain injury.  The examiner observed that the Veteran was diagnosed with mild TBI back in 2003 but had been complaining of poor balance since 2000, according to a head CT scan done at that time.  The examiner noted that the Veteran had been suffering substance abuse problems for years prior to the head injury.  He noted the Veteran had a neurology evaluation in 2003 because of a head injury without residuals and observed that the Romberg test has been positive since 2004.  For that reason, the examiner found that the residuals of ethanol and cocaine abuse are more like the cause of the Veteran's imbalance problem than his mild TBI in 2003.

During the January 2012 VA examination for the cervical spine, the Veteran reported having flare ups of increased pain causing him to stop and rest his neck.  He said he did not become incapacitated or seek bed rest.  The examiner opined that the Veteran's current cervical spine condition did not render him unemployable.

In September 30, 2015, an opinion was obtained addressing the impact of the Veteran's service-connected neck and radiculopathy on employment.  After reviewing the electronic claims file and examining the Veteran, the VA examiner opined that the Veteran is unable to engage in manual labor such as his previous employment as a mechanic.  He is able to engage in sedentary activities such as a service desk attendant and telephone solicitation.  His dependency on his wheelchair is unrelated to his current neck condition.  

Based on the foregoing, the Board cannot find that the Veteran's residuals from his TBI, his headaches, and his service-connected neck disability with radiculopathy rendered him unemployable prior to September 30, 2015.  While the Veteran often attributed his unemployment to his TBI residuals, as discussed above, most of the symptoms that the Veteran reported as having affected employment have been attributed to causes other than TBI, such as non-service connected substance abuse.  None of the medical providers or examiners found that the Veteran's service-connected disabilities alone prevented him from obtaining and maintaining substantially gainful employment prior to September 30, 2015.

Here, the Board finds that the evidence supports a finding of a TDIU as of September 30, 2015 because the examiner opined that the Veteran's service-connected neck disability with radiculopathy rendered him unable to engage in manual labor such as his previous employment as a mechanic.  The examiner said he is able to engage in sedentary activities such as a service desk attendant and telephone solicitation.  However, when considering the severity of the Veteran's service connected residual of his TBI, his headaches, and with consideration of his level of education, special training, and previous work experience, the Board finds that the Veteran's service-connected disabilities have rendered him unemployable as of September 30, 2015.  To this extent, the appeal is granted.

The Board has considered whether referral for extraschedular consideration of a TDIU prior to September 30, 2015 is warranted.  However, as discussed above, whether the Veteran met the initial schedular threshold for a TDIU or not, the severity of his service-connected disabilities alone did not render the Veteran unable to obtain or maintain substantially gainful employment.  As such, referral for extraschedular consideration is not warranted.


ORDER

Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for bilateral double vision claimed as the result of a fall on April 9, 2003 at a VAMC is denied.

Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a back disorder claimed as the result of a fall on April 9, 2003 at a VAMC is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected head trauma residuals with headaches from April 9, 2003 to October 22, 2008 is denied.

Entitlement to a disability rating in excess of 40 percent for service-connected head trauma residuals with headaches from October 23, 2008 is denied.

Entitlement to a TDIU from September 30, 2015 is granted.





______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs