Citation Nr: 18142580 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-17 199 DATE: October 16, 2018 ORDER Service connection for a traumatic brain injury (TBI) is granted. Service connection for hyposmia is granted. An initial compensable rating for headaches is denied. An initial compensable rating for vertigo is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for kidney stones is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran has residuals of an in-service head injury. 2. The competent and probative evidence is at least in equipoise as to whether hyposmia had its onset in or is otherwise related to a period of the Veteran’s active service. 3. The weight of the competent and probative evidence is against finding that the Veteran experiences characteristic prostrating headaches. 4. The weight of the competent and probative evidence is against finding a diagnosis of vestibular disequilibrium supported by objective findings. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for TBI have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hyposmia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to an initial compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8100. 4. The criteria for entitlement to an initial compensable rating for vertigo have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, DC 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to July 1988; January 1989 to December 1994; July 2006 to May 2007; and March 2010 to April 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and December 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified before the undersigned at a Board hearing in Portland, Oregon. A transcript of that hearing has been associated with the virtual file and reviewed. Service Connection 1. Entitlement to service connection for TBI After review of the record, the Board finds that the criteria for service connection for TBI have been met. The Veteran contends that he suffered a head injury during his last deployment when an explosion caused a heavy box to hit him in the right side of the head. In a January 2011 post-deployment health assessment, the Veteran endorsed experiencing bad headaches, dizziness, problems sleeping, memory problems, and vertigo, which he contends developed after the in-service head injury. 10/18/2011, Medical-Government. In July 2011, less than three months after discharge, the Veteran underwent a TBI consultation. He reported a head injury during his last deployment that resulted in disorientation and confusion and posttraumatic amnesia, and that he was subsequently told he was acting differently. He endorsed numerous neurobehavioral symptoms associated with TBI such as dizziness; poor coordination; headaches; nausea; vision problems; sensitivity to light; numbness or tingling on parts of body; change in taste or smell; poor concentration; forgetfulness; difficulty making decisions; slowed thinking; fatigue; difficulty falling or staying asleep; anxiousness; depression; irritability; and poor frustration tolerance. The evaluator noted the new onset of headaches, vertigo, mood alteration, and learning difficulty, but concluded that his symptoms were due to a condition other than TBI. 07/09/2012, STR-Medical. The Board notes that the Veteran was ultimately granted service connection for vertigo, headaches, and tinnitus, which are all symptoms associated with TBI. The Board assigns the evaluation less probative weight because the physician failed to provide an etiology for the Veteran’s neurobehavioral symptoms. In other words, the evaluator did not provide an adequate rationale for concluding that the neurobehavioral symptoms endorsed by the Veteran were not due to the in-service head trauma. In June 2018, the Veteran was diagnosed with TBI due to the in-service head injury. 06/08/2018, CAPRI. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran experiences residuals of an in-service head trauma. See 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for hyposmia After review of the record, the Board finds that the criteria for service connection for hyposmia (claimed as the loss of sense of smell) have been met. The Veteran contends that his problems with his sense of smell developed at the same time of headaches and vertigo, which was soon after the in-service head injury. 02/06/2018, Correspondence. In July 2011, less than three months after discharge, the Veteran underwent a TBI consultation and endorsed experiencing change in taste or smell. 07/09/2012, STR-Medical. In May 2014, the Veteran was diagnosed with posttraumatic anosmia, and his loss of his sense of smell was attributed to the in-service head trauma. 03/16/2015, CAPRI. In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether hyposmia had its onset in or is otherwise related to a period of active service. See 38 C.F.R. §§ 3.102, 3.303. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 3. Entitlement to an initial compensable rating for headaches The Veteran contends that he is entitled to an initial compensable rating for headaches, evaluated under Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. Finally, a maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Prostrating means causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities. After reviewing the relevant medical and lay evidence and applying the above legal criteria, the Board finds that an initial compensable rating is not warranted for headaches. A February 2013 VA examination reflects the Veteran’s report of experiencing constant dull pain on the right side, and that two to three times per week he has headaches with pulsating type pain that requires taking ibuprofen. The Veteran described his headaches as dull, achy pain localized to one side of the head that occasionally becomes pulsating, with headaches typically lasting less than one day. He also reported sensitivity to sound and changes in vision. The examiner indicated that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner noted that headaches may result in a slight increase in absenteeism, but otherwise do not affect the Veteran’s ability to work. 02/07/2013, VA Examination. In a March 2014 notice of disagreement (NOD), the Veteran reported experiencing daily headaches and noted that they have become prostrating multiple times since his last deployment. 03/12/2014, NOD. In February 2018, the Veteran testified that he has at least 12 headaches per week, but that he has two to three headaches per week that are severe enough to require ibuprofen. He stated that he has to hold his head due to headache pain, and that he feels pressure on his right eye. The Veteran stated that headaches mostly occur while he is at work, but he did not indicate that headaches cause him to miss work or leave work early. 06/12/2018, Hearing Transcript. In light of the foregoing, the Board finds that an initial compensable rating is not warranted for headaches because the weight of the competent and probative evidence is against finding that the Veteran’s headaches are prostrating. See 38 C.F.R. § 4.124a, DC 8100. The Board recognizes that the Veteran has headaches that are severe enough to require him to take ibuprofen multiple times per week, but the Veteran has not described his headaches as causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities. The Board acknowledges that the Veteran reported multiple prostrating attacks since his last deployment, however, the question of whether his headaches are prostrating is a question of fact to be determined by the Board. The Veteran’s use of the word “prostrating” without details to support the conclusory statement is assigned little probative weight. The Board notes that service connection has been granted for TBI herein, and that the Veteran’s headaches and sensitivity to sound may be compensated as part of the rating assigned for TBI. See 38 C.F.R. § 4.124a, DC 8045. The Board considered all potentially applicable diagnostic codes in accordance with Schafrath, 1 Vet. App. 589; however, the evidence does not show symptoms that could be separately rated higher under another diagnostic code. See 38 C.F.R. § 4.124a. Indeed, when a disorder is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). The benefit of the doubt has been applied as applicable. 4. Entitlement to an initial compensable rating for vertigo The Veteran contends that he is entitled to an initial compensable rating for vertigo, evaluated under Diagnostic Code 6204. Under Diagnostic Code 6204, a 10 percent rating is assigned for occasional dizziness, and a 30 percent rating is warranted for dizziness and occasional staggering. A Note following the rating criteria provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under Diagnostic Code 6204. 38 C.F.R. § 4.87, DC 6204, Note. After reviewing the relevant medical and lay evidence and applying the above legal criteria, the Board finds that an initial compensable rating for vertigo is not warranted because the weight of the competent and probative evidence is against finding a diagnosis of vestibular disequilibrium supported by objective findings. In February 2013, a VA examiner indicated that results of a January 2012 electromyography (EMG) did not support a diagnosis of a peripheral vestibular disorder. 02/07/2013, VA Examination. There is no other medical evidence of record demonstrating objective findings supporting the diagnosis of a peripheral vestibular disorder manifested by disequilibrium. Accordingly, a compensable rating is not warranted. See 38 C.F.R. § 4.87, DC 6204, Note. The Board notes that service connection has been granted for TBI herein, and that the Veteran’s dizziness may be compensated as part of the rating assigned for TBI. See 38 C.F.R. § 4.124a, DC 8045. The Board considered all potentially applicable diagnostic codes in accordance with Schafrath, 1 Vet. App. 589; however, the evidence does not show symptoms that could be separately rated higher under another diagnostic code. See 38 C.F.R. § 4.87. The benefit of the doubt has been applied as applicable. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for kidney stones is remanded. A February 2013 VA examiner indicated that the Veteran’s kidney stones do not require diet therapy. The Veteran contends that he has recurrent stones and that he was advised to avoid certain foods and drinks. Medical records associated with the claims file do not demonstrate dietary restrictions due to kidney stones. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for a VA examination to determine the current severity of his kidney stones, to include whether they are treated with diet therapy. 2. Entitlement to TDIU remanded. The Board deems TDIU to be a component of the claims for increased ratings for headaches and vertigo in light of the Veteran’s statement that he is unable to work due, at least in part, to his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board will remand the claim for TDIU for appropriate development. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2018 to the present. 2. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected kidney stones. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, including whether there is recurrent stone formation requiring diet therapy. The examiner should address the Veteran’s contentions that he was advised to avoid certain foods and drinks containing dairy and beef. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the kidney stones alone and discuss the effect of the Veteran’s kidney stones on any occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of this claim. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel