Citation Nr: 1804527 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-16 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased disability rating in excess of 20 percent for seizure disorder associated with traumatic brain injury, to include the propriety of a reduction from 20 percent to 10 percent from September 4, 2012 to July 26, 2015. 2. Entitlement to a compensable rating for residuals of traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2016, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. FINDINGS OF FACT 1. In August 2016, the Veteran, through his representative, submitted a written statement withdrawing his appeal of entitlement to an increased rating for seizure disorder. 2. The Veteran does not exhibit cognitive, emotional/behavioral, or physical impairments as residuals of TBI, excluding those which are evaluated separately under appropriate diagnostic codes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement an increased rating for seizure disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a compensable rating for residuals of TBI have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8045 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. A withdrawal may also be initiated by the Veteran's authorized representative. Where, as here, an appeal withdrawal is received after the case has been transferred to the Board, the withdrawal does not become effective until the issue is dismissed by the Board. Id. at § 20.204(b)(3). In a letter dated in June 2016, the Veteran was notified that his appeal has been certified to the Board. Subsequently, in a written statement dated in August 2016, the Veteran, through his representative, notified the Board of his desire to withdraw the issue of entitlement to an increased rating for seizure disorder. The Veteran confirmed his desire to withdraw the issue of entitlement to an increased rating for seizure disorder, to include the reduction issue, at his August 2016 hearing. In light of the Veteran's expressed desire to withdraw his pending appeal before the Board, no further action in regards to this claim need be taken. Accordingly, the Veteran's claim of entitlement to increased rating for seizure disorder, to include the reduction issue, is hereby dismissed. II. Increased Rating Legal Principles 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 in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012) The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). This is because the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. 38 U.S.C. § 5110(b) (2). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). The Veteran's TBI disability is currently evaluated as noncompensable under Diagnostic Code 8045. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 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. Id. The rater is directed to evaluate under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. They are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" whether or not they are part of cognitive impairment. However, any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headache or Meniere's disease, is to separately evaluated, 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. Id. Emotional/behavioral dysfunction is evaluated 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, emotional/behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Physical (including neurological) dysfunction is evaluated 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. Residuals not listed above that are reported on an examination are evaluated under the most appropriate Diagnostic Code. Each such condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition are then combined under § 4.25. 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. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" 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. 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, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. Note (1) provides that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI 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, VA will not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation will be assigned 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, a separate evaluation will be assigned for each condition. Id. Note (2) clarifies that symptoms listed 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. Id. The table titled "Evaluation Of Cognitive Impairment And Other Residuals of TBI Not Otherwise Classified" provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. For headaches, a zero percent rating is assigned for less frequent attacks. A 10 percent rating is assigned for characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over last several months, and a maximum 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Analysis There is a large amount of evidence in this case, consisting of both lay and medical evidence. The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). As previously mentioned, Diagnostic Code 8045 directs the rater to separately evaluate any residual symptom(s) with a distinct diagnosis that may be evaluated under another diagnostic code. To that extent, the Board acknowledges that the Veteran is currently service-connected for multiple disabilities, which are commonly attributed to TBI. Service connection is currently in effect for (other than TBI) posttraumatic stress disorder with bipolar disorder (rated as 30 percent disabling from November 25, 2009, 50 percent disabling from May 24, 2012, 70 percent disabling from February 27, 2013, and 100 percent disabling from October 30, 2015); seizure disorder associated with TBI (rated as 20 percent disabling from July 26, 2010, with a reduction to 10 percent from September 4, 2012 to July 26, 2015, and then continued at 20 percent from July 27, 2015); tinnitus (rated as 10 percent disabling from November 25, 2009); degenerative disc disease of the cervical spine (rated as 10 percent disabling from July 26, 2010, to August 18, 2016, under Diagnostic Code 5243, and then continued thereafter under Diagnostic Code 5242); left ear hearing loss (rated as noncompensable from November 25, 2009); erectile dysfunction (rated as noncompensable from April 27, 2011); and headaches (rated as noncompensable from September 8, 2011). A total disability rating by reason of individual unemployability (TDIU) was also in effect from August 30, 2013, to October 30, 2015. Neither the Veteran nor his attorney has expressed disagreement with, or otherwise presented argument concerning, the separate ratings assigned to such disabilities. Rather, the Veteran is seeking a compensable rating for residuals of TBI. Based on a review of the evidence, the Board finds that a compensable disability rating for residuals of TBI is not warranted in this case. The medical evidence of record does not reflect any residual symptoms of TBI that are not already contemplated by the separate ratings assigned. For instance, the Veteran's service-connected PTSD adequately contemplates the various facets of cognitive and emotional/behavioral impairments experienced by the Veteran. Similarly, the Veteran's service-connected headaches, hearing loss, tinnitus, and seizure disorder, respectively, adequately contemplate his physical impairments. As indicated, the Veteran testified at a videoconference hearing in August 2016. At that time, the Veteran expressed, in pertinent part, understanding that his reported manifestations, e.g., seizures, are being associated with separate disability ratings to provide the Veteran with a higher overall disability rating. Upon questioning, the Veteran acknowledged he is not aware of any residual manifestations of TBI that are not otherwise contemplated by a separately rated disability. The Board has also considered the various lay statements of record. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue and the attribution of manifest symptoms to specific medical diagnoses are not matters that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, to the extent the Veteran is addressing questions of the medical nature and severity of his TBI, the Board finds his statements are not competent lay evidence. The probative medical evidence outweighs any competent lay statements in this case. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable evaluation for residuals of TBI. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a compensable rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal is denied. (ORDER ON NEXT PAGE) ORDER The appeal of the claim for entitlement to an increased rating for seizure disorder, to include the reduction issue, is dismissed. Entitlement to a compensable rating for residuals of traumatic brain injury is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs