Citation Nr: 18140121 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 13-04 916 DATE: October 2, 2018 ORDER A 40 percent disability rating for service-connected residuals of a traumatic brain injury is granted. A 50 percent disability rating for service-connected migraine headaches is granted. FINDINGS OF FACT 1. The Veteran’s service-connected residuals of a traumatic brain injury are shown to have been productive of mild memory impairment and moderately impaired visual spatial orientation, but not symptoms warranting more than a level “2” in any category. 2. Throughout the appeal period, the Veteran’s migraine headaches have more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for service-connected residuals of a traumatic brain injury have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8045. 2. The criteria for a 50 percent rating, but no higher, for service-connected migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to September 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in November 2010 and June 2012 by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for service-connected residuals of a traumatic brain injury The Veteran was awarded service connection for residuals of a traumatic brain injury (TBI) with an initial 10 percent disability rating assigned, effective from October 2008. Under Diagnostic Code 8045, there are three main areas of dysfunction listed 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. Cognitive impairment should be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 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 same table, with the exception of 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Emotional/behavioral dysfunction should be evaluated under § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, such symptoms should also be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Physical (including neurological) dysfunction should be 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. Other residuals reported on an examination should be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and 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 a 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, and labeled “total.” A 100 percent evaluation should be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation should be assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Id. The 10 cognitive impairment facets are: consciousness, communication, neurobehavioral effects, subjective symptoms, visual spatial orientation, motor activity, orientation, social interaction, judgment, and one facet encompassing memory, attention, concentration, and executive function. There may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic disorder or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation is to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is 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 is assigned for each condition. 38 C.F.R. § 4.124a, Note 1. 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. 38 C.F.R. § 4.124a, Note 2. 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. 38 C.F.R. § 4.124a, Note 3. The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of a TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. 38 C.F.R. § 4.124a, Note 4. Initially, the Board notes that the Veteran has been service-connected for depressed mood/PTSD, migraine headaches, and tinnitus which have been separately rated, and those conditions will thus not be considered part of this analysis. To avoid impermissible pyramiding, this decision is limited to whether an increased rating is warranted for all other areas of dysfunction as specified under Diagnostic Code 8045. 38 C.F.R. § 4.14. In a January 2009 private follow-up examination report, Dr. J.S. stated that the Veteran had chronic daily headaches, ringing in his ears, blurred vision, double vision, and memory loss. He also indicated the Veteran was confused and indecisive at times and had problems with concentration, insomnia, fatigue, and irritability. These symptoms were attributed to the Veteran’s in-service head trauma. In a statement submitted in February 2009, the Veteran reported face pain, confusion, problems with double vision, blurry vision, forgetfulness, and fatigue. He attributed these symptoms to his brain injury. During an April 2009 VA examination, the Veteran reported that he was a letter carrier and that he becomes occasionally disoriented when attempting to deliver the mail. He said he becomes dizzy at least once a week, at which point he sees stars and becomes lightheaded. He indicated that he occasionally becomes unaware of where he is in a building or wonders how he got to where he is. He noted blurred vision which affects his ability to read and causes disorganization. The Veteran stated that he uses notes to remind himself of things but he frequently forgets and has trouble concentrating. He exhibited some degree of agitation, including getting agitated with his wife and yelling at his children. Based on a review of the claims file and interview with the Veteran, the examiner provided the following assessment on the facets of cognitive impairment and other TBI residuals: Memory, attention, concentration, executive functioning, 1; Judgment, 0; Social interaction, 1; Orientation, 0; Motor activity, 0; Visual spatial orientation, 2; Subjective symptoms, 2 (including headaches, sensitivity to light and sounds, tinnitus, insomnia, and fatigue); Neurobehavioral effects, 1; Communication, 0; and Consciousness, 0. During a March 2010 examination, the examiner noted that the Veteran’s memory and concentration were relatively intact. The Veteran reported significant memory deficiencies but only mild memory deficiencies were noted on examination. During an April 2010 VA examination, the Veteran reported mild short-term memory loss, indicating that he was forgetful, misplaced objects, and forgot names of people. During an August 2011 VA examination, the examiner noted that the Veteran’s attention and concentration were mildly impaired. The Veteran also reported some problems with short-term memory. His judgment was deemed normal. The Veteran’s social interaction was routinely appropriate and he was oriented to time, place, person, and situation on examination. The examiner indicated that the Veteran was able to ambulate with a wide-based gait and slow ambulation. There was mild ataxia of his gait. Further, there were no problems with visuospatial orientation or getting lost. The examiner noted subjective symptoms such as headaches, dizziness, weakness in his body, and fatigue, and found that they interfere with his ability to do physical work but stated they do not interfere with his ability to do activities of daily living. Neurobehavioral effects that affect his work place or social interaction include anger. He was able to communicate expressively, receptively, both spoken and written, and his consciousness was normal. Based on the report by the examiner, the following assessment on the facets of cognitive impairment and other TBI residuals were indicated as follows: Memory, attention, concentration, executive functioning, 2; Judgment, 0; Social interaction, 0; Orientation, 0; Motor activity, 0; Visual spatial orientation, 0; Subjective symptoms, 1; Neurobehavioral effects, 1; Communication, 0; and Consciousness, 0. The Veteran was afforded an additional VA examination in February 2012. Based on a review of the claims file and interview with the Veteran, the examiner provided the following assessment on the facets of cognitive impairment and other TBI residuals: Memory, attention, concentration, executive functioning, 1; Judgment, 0; Social interaction, 0; Orientation, 0; Motor activity, 0; Visual spatial orientation, 1; Subjective symptoms, 0; Neurobehavioral effects, 0; Communication, 0; and Consciousness, 0. During an October 2015 VA examination, the examiner indicated that testing in March 2010 indicated mild cognitive deficiencies due to traumatic brain injury. Based on a review of the treatment records and interview with the Veteran, the examiner provided the following assessment on the facets of cognitive impairment and other TBI residuals: Memory, attention, concentration, executive functioning, 2; Judgment, 0; Social interaction, 0; Orientation, 0; Motor activity, 0; Visual spatial orientation, 1; Subjective symptoms, 1 (including headaches, tinnitus, hypersensitivity to light, hypersensitivity to sound, and cognitive impairments); Neurobehavioral effects, 0; Communication, 0; and Consciousness, 0. Based on the above and affording the Veteran the benefit of the doubt, the Board finds that the requirements for a 40 percent disability rating have been met for the Veteran’s service-connected traumatic brain injury for the entire period on appeal. Even without considering the Veteran’s resulting PTSD, tinnitus, and migraine headaches, his service-connected traumatic brain injury manifests in moderate impairment of visual spatial orientation and objective evidence of mild impairment of memory, attention, concentration, or executive functions. Accordingly, as a level “2” impairment is found for the entire period on appeal in at least one facet, the requirements for a 40 percent disability rating have been met. A rating in excess of 40 percent is not met for any period on appeal, however. There is no evidence that the Veteran’s traumatic brain injury more nearly approximates the level “3” impairment in any of the facets or a persistently altered state of consciousness. Additionally, as noted above, his associated depressed mood/PTSD, migraine headaches, and tinnitus are separately compensated. As such, an increased rating based on these subjective symptoms is not warranted. 2. Entitlement to a rating in excess of 30 percent for service-connected migraine headaches The Veteran asserts that his service-connected migraine headache disability warrants a rating in excess of the currently assigned 30 percent disability rating under Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the highest available under Diagnostic Code 8100, is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating” as used in Diagnostic Code 8100. By way of reference, the Board notes that according to Webster’s New College Dictionary 909 (3d Ed. 2008), “prostrate” is defined as “physically or emotionally exhausted”. The word “incapacitated” is listed as a synonym. A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness”. Also, the term “productive of severe economic adaptability” has not been clearly defined by regulations. The Court has, however, explained that “productive of” for purposes of Diagnostic Code 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Similarly, “economic inadaptability” does not equate to unemployability, as such would undermine the purpose of regulations pertaining to TDIU ratings. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. Turning to the record, an August 2008 statement from Dr. J.S. indicates that the Veteran suffered from 1 to 2 migraine headaches per month that last from 4 hours to 2 days. His symptoms included nausea, dizziness, disorientation, sensitivity to light and noise, seeing stars, and hearing noises. He had to lie down in a quiet, dark room for relief. A January 2009 private report from a follow-up examination indicates that the Veteran had chronic daily headaches with aura. During an April 2009 VA TBI examination, the Veteran reported missing approximately 4 days per month from work as a consequence of fatigue and headaches. He stated that he had daily headaches that render him sensitive to bright light as well as loud noises, which exacerbate his symptoms. During an April 2010 VA examination, the Veteran reported migraine headaches that can last from several hours to 1 day. He also indicated chronic daily headaches that are associated with photophobia and phonophobia. He had associated blurred vision and diplopia. He had these headaches about 2 to 3 times per week but they were alleviated with over-the-counter pain medications. The headaches were moderately severe and recurrent from time to time. The Veteran also reported dizziness with the headaches. During a June 2010 VA mental disorders examination, the Veteran stated that he had daily headaches. He indicated that once or twice a month his headache was so severe that he was unable to function and had to rest. Private treatment records dated from March 2010 to July 2011 show complaints of headaches. During an August 2011 VA examination, the Veteran reported severe headaches that were sharp and pulsating with accompanying visual disturbances, nausea, phonophobia, and photophobia. He stated that normal activity is not possible during a headache episode, which occurred 2 to 3 times per month for 8 to 48 hours. Correspondence dated in August 2013 from Dr. G.H. states that the Veteran had frequent headaches, occurring 6 to 8 times per month lasting 16 to 72 hours. During a July 2014 VA examination, the Veteran reported severe headaches 5 times a month lasting 1 to 2 days. He stated that he cannot function until the headache goes away with rest. On a March 2015 private Headaches Impairment Questionnaire, the Veteran’s headaches were characterized as chronic, debilitating migraines and chronic headaches. Associated symptoms include vertigo, nausea/vomiting, malaise, photosensitivity, visual disturbances, mood changes, and mental confusion/inability to concentrate. The headaches were found to be of such severity to require complete prostration and occurred weekly. The examiner estimated that the Veteran would miss work more than 3 times a month related to his headache impairment. The examiner opined that the Veteran was not capable of performing gainful employment with the symptoms and limitations stemming from his headache impairment. During an October 2015 VA examination, the Veteran reported daily headaches that were severe and prostrating approximately 4 times per month. The headaches had associated nausea, sensitivity to light, sensitivity to sound, and changes in vision. The examiner noted that the Veteran has characteristic prostrating attacks of migraine headache pain but did not consider the attacks very prostrating and prolonged so as to result in severe economic inadaptability. The examiner opined that the Veteran’s headaches would impact his ability to work due to reduced reliability and productivity caused by the daily moderate headaches and severe weekly headaches. VA treatment records indicate complaints of frequent headaches throughout the appeal period. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 50 percent rating for migraine headaches have been met for the entire appeal period. More specifically, the evidence shows that the Veteran’s migraines are manifested by completely prostrating and prolonged attacks productive of severe economic inadaptability. In this regard, the Veteran’s description of his headaches has been relatively consistent over time and supports a finding that such were very frequent (occurring at least twice a month and frequently more), completely prostrating (requiring him to rest), and prolonged (lasting for hours to days). Additionally, the Veteran reported that his migraine headaches impacted his ability to work as a postal worker and were said to cause him to miss 4 days of work per month. In short, even though the Veteran did work for part of the appeal period, it is easy to see how his described migraine headaches were capable of producing severe economic inadaptability. See Pierce, supra. In sum, resolving all reasonable doubt in his favor, a rating of 50 percent is warranted for migraine headaches, which is the maximum schedular rating under Diagnostic Code 8100. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor