Citation Nr: 18145949 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-34 973 DATE: October 30, 2018 ORDER Entitlement to an initial 40 percent evaluation, and no higher, for cognitive dysfunction as a residual of traumatic brain injury (TBI) is granted. Entitlement to an initial separate evaluation of 30 percent, the maximum schedular rating for vertigo, as a residual of TBI, is granted. Entitlement to an initial 50 percent evaluation, the maximum schedular rating for posttraumatic headaches (migraines), as a residual of TBI, is granted. REMANDED Entitlement to compensable evaluation for hearing loss, as a residual of vertigo is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected left shoulder impingement is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected intervertebral disc syndrome (IVDS) of the thoracolumbar spine is remanded. Entitlement to an initial compensable evaluation for service-connected degenerative arthritis (DA) of the left knee is remanded. Entitlement to an initial compensable evaluation for service-connected degenerative arthritis (DA) of the right knee is remanded. Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Objective testing showed that the Veteran has mild cognitive impairment of memory, concentration, and attention, as a residual of TBI. 2. The Veteran’s vertigo, as a residual of TBI, manifested with dizziness and occasional staggering. 3. The Veteran’s service-connected migraines have manifested with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial 40 percent evaluation, and no higher, for cognitive impairment as a residual of traumatic brain injury (TBI) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8045 (2017). 2. The criteria for an initial separate evaluation of 30 percent, the maximum schedular rating for vertigo as a residual of TBI have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.87, DC 6204 (2017). 3. The criteria for an initial 50 percent evaluation, the maximum schedular rating for service-connected posttraumatic headaches (migraines) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from August 1996 to June 2006 and from November 2006 to April 2014. This case comes before the Board on appeal of a June 2014 rating decision. The Veteran filed his notice of disagreement (NOD) in March 2015. Increased Rating Claims Disability evaluations 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 Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). 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 rating will be assigned. 38 C.F.R. § 4.7 (2017). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods of time, based on the facts may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(a); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1Vet. App. 49, 55 (1990). Residuals of TBI are rated under 38 C.F.R. §4.124a DC 8045, which states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. 38 C.F.R. § 4.124a. 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. Id. 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. § 4.124(a), Note 1. 1. Entitlement to an initial compensable evaluation for cognitive impairment as a residual of service-connected traumatic brain injury (TBI) Here, the Veteran was granted service connection for a TBI in the June 2014 rating decision, with a noncompensable evaluation. The Veteran filed his notice of disagreement in March 2015, seeking a compensable evaluation for memory loss, difficulty socializing and difficulty making decisions. After a review of the pertinent evidence, the Board finds agrees that the Veteran suffers from impairments in memory, attention, and concentration. Specifically, in a December 2017 rehab outpatient note, the Veteran reported difficulties in memory and cognition that caused him to forget to pay bills, what bills were due, how to drive to familiar places and misplace his keys. The Veteran added that his work routine had been the same for two years but he felt he needed to concentrate more on his job and take things slower. As it pertains to behavior and mood, the Veteran reported that he is separated from his wife and did not feel comfortable when leaving home. He stated he works with small group and sits in the same place every day, and cannot sit with his back to the window. He expressed irritability and hypervigilance. The Veteran stated he watches people, but does not like being around a lot of people and does not like standing in line with people behind him. He reported getting easily frustrated and being upset for hours. The examiner relayed that the Veteran would consider treatment for PTSD. On physical examination, the Veteran was able to communicate clearly and was oriented in all spheres. He followed instructions without difficulty. His attention span was normal, speech intact, with stable articulation, affect and appropriate interaction. His MoCA (Montreal Cognitive Assessment) score was 22/30, which was abnormal because a score of 26 or greater is considered within normal limits. His visuospatial/executive was -2/5, naming -1/3, read list of letters -1/1, fluency -1/1, and delayed recall -5/5. The Veteran was spelled “world” correctly forward and backward. The Veteran’s gait was coordinated with stable stance and pace. The Veteran was positive for Romberg and pronator shift, but had an intact tandem walk. His superficial touch and pain sensation were intact, with full range of motion and symmetrical upper and lower extremities. He had intact finger to nose maneuver bilaterally, and rapid alternating movements were coordinated and smooth. No abnormal, involuntary movements, spasticity or rigidity. His heel shin was good bilaterally. Moreover, in the February 2018 speech pathology consult, the Veteran reported difficulty with memory of basic things, such as where he placed his wallet and phone, and often forgets to pay bills. His current difficulties were listed as poor short-term memory, poor focus/concentration and poor sleep. He reported he worked full time as a truck driver. He reported difficulty with memory and focus that affected his work performance. He had forgotten to secure loads properly, forgotten to do maintenance checks, and forgotten that the landing hear was down on the trailer. In the hearing section, he reported that he sometimes asks for repetitions, which may be related to concentration. No vision issues were reported. On examination, the Veteran’s oral motor/speech, auditory comprehension, and verbal expression were all normal. The Veteran did not express any concerns with reading or writing. Regarding memory, the Veteran reported a consistent work schedule with good routine. His indicated that he forgets to take his medication almost daily. While driving, he misses turns, but has no difficulty at work due to driving the same routes. He explained that he drives on autopilot when leaving work at 11pm, and noticed “drifting” when riding his motorcycle. He endorsed difficulty remembering to pay bills and difficulty remembering names and numbers. The Veteran added that he burned his food one time where he set the microwave to 20 minutes versus two minutes and walked away. In terms of attention, the Veteran reported that he is easily distracted, has trouble concentrating and multi-tasking, and starts many tasks without completion. Likewise, he often misplaced items. The examiner administered the Repeatable Battery for the Assessment of Neuropsychological Status. The Veteran completed the assessment; however, the results were not an optimal reflection of the Veteran’s abilities based on effort index. The examiner believed the Veteran would benefit most from strategy-based cognitive training to improve daily functioning in setting of poor sleep and PTSD. The examiner assessed the Veteran with cognitive symptoms, including short-term memory and attention difficulty, impacting daily functioning. The Veteran’s expressive and receptive language abilities were within normal limits. No speech deficits were noted. The examiner explained how attention relates to memory and how trouble focusing, due to internal or external distractors (e.g. fatigue, stress frustration), can result in forgetfulness. The Veteran was receptive to participating in speech cognitive therapy. Based on the foregoing, the Veteran’s cognitive impairment as a residual of TBI most closely approximates to a rating of 2 under cognitive impairment facet for memory, attention, concentration, which corresponds to a 40 percent disability evaluation. There was objective evidence on testing (MoCA score of 22) of mild impairment of memory, attention and concentration resulting in mild functional impairment. Although the Veteran expressed behavior and mood symptoms, as well as subjective symptoms, the level of impairment for those facets do not result in an evaluation higher than 40 percent. Likewise, it is unclear whether his behavior/mood symptoms of hypervigilance, irritability, frustration and anger are related to his TBI or his service-connected PTSD; therefore, as the issue of an increased rating for PTSD is being remanded, the Board will avoid assigning an evaluation based on these manifestations. Furthermore, there is no objective evidence of impairments in judgment, social interaction, orientation, motor activity, visual spatial orientation, and communication that would warrant a higher rating than assigned under the cognitive impairment facet. Accordingly, as there is objective evidence on testing of mild impairment of memory, concentration and attention, a 40 percent evaluation, and no higher is granted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable evaluation for vertigo as a residual of service-connected traumatic brain injury (TBI) As discussed above, the Veteran filed his notice of disagreement in March 2015, seeking a higher evaluation for residuals of TBI. Based on the evidence, the Board finds that a separate evaluation for vertigo as a residual of TBI is warranted. Under Diagnostic Code 6204, peripheral vestibular disorders are assigned a rating of 30 percent where there is dizziness and occasional staggering. A 10 percent rating is assigned with occasional dizziness. Under the note for DC 6204, the rater is directed that objective findings supporting a diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. See 38 C.F.R. § 4.87, Diagnostic Code 6204. The term “staggering” is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster’s New College Dictionary, 3rd ed., at 1099. Regarding whether a higher rating is warranted under any other diagnostic codes, the only other relevant diagnostic code pertains to Meniere’s syndrome. The Board notes, however, that the Veteran does not have a diagnosis of Meniere’s syndrome. In a November 2017 nursing discharge note, the Veteran was admitted and discharged on the same day with a diagnosis of vertigo. Then, in a December 2017 TBI follow-up, the Veteran reported almost daily dizziness/vertigo since he was discharged. He was prescribed Meclizine which he was taking almost daily. The Veteran reported that he gets dizziness/vertigo when getting out of the bed in the morning, when he changes position, turning his head too quickly, and while driving. He indicated his vertigo may last 30-40 seconds up to a few minutes, with nausea. He added that he knows when it is about to occur because he feels like he is drifting to his right side. In a March 2018 VA examination, the Veteran reported that his vertigo symptoms started in 2005, while deployed in Iraq. He was in a Bradley tank when an IED blast occurred under the tank. The Veteran claimed he was unconscious for “a little bit” and injured his neck and back. He reported encountering between 7-8 IED blasts during that deployment. Then, in the 2007 during the surge, the Veteran encountered another IED blast. The Veteran reported the vertigo has worsened affecting daily life, including being seen at the Emergency Department three times in the past six months. His symptoms included nausea, lightheadedness, a change in senses, staggering, confusion, and as if the room was spinning. During the examination, he reported using Meclizine about six times daily. The VA examiner indicated that the Veteran was diagnosed with vertigo of central origin. The examination showed that the Veteran had hearing impairment with vertigo, more than once weekly, with a duration of less than one hour. The Veteran was shown to have had vertigo episodes and staggering more than once weekly with a duration of one to twenty-four hours. Additionally, the VA examiner indicated the Veteran suffers from hearing impairment and or tinnitus. Conversely, the Veteran did not show signs of swelling in the external ear canal, effusion, discharge, active suppuration the Veteran did not have a benign neoplasm of the ear. Examination of the Veteran’s ear did not reveal any abnormalities. The Veteran’s gait was normal as well; however, the Romberg test was abnormal or positive for unsteadiness. Limb coordination test (finger-nose-finger) was normal. The Veteran reported that his vertigo affects his occupation since he has missed many days of work due to his symptoms. At the time of the examination, the Veteran was still employed delivering equipment while units are on training missions. Based on the foregoing, the Veteran’s vertigo most closely approximates to a 30 percent disability rating, the highest schedular rating under DC 6204. The Veteran reported dizziness and occasional staggering that was supported on examination. As discussed above, the Veteran does not have a diagnosis of Meniere’s syndrome, which would provide for a higher evaluation. A higher evaluation is not warranted until a hearing loss examination can be performed, as directed under the Note for DC 6204. Accordingly, a 30 percent evaluation for vertigo, the highest schedular rating, is granted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic headaches (migraine headaches) In this case, the Veteran’s migraine headaches have been rated at 30 percent disabling under DC 8100. Under DC 8100, a 30 percent rating is warranted when there is evidence of migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted with evidence of migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a. The Veteran contends that his migraine headaches warrant an evaluation higher than 30 percent. Based on the evidence of record, the Board agrees. Specifically, in the December 2017 rehab outpatient note, the Veteran reported weekly headaches, with photophobia, phonophobia and nausea. He indicated that the headaches are likely to occur in the mornings and evenings. The headaches start frontal and may progress to feeling like its behind his eyes, causing blurred vision. He described the pain as a 9 out of 10, when severe, but generally on average 6 out of 10. The Veteran indicated that debilitating headaches are treated with Sumatriptan 2-3 times a month. The Veteran reported missing two days of work due to his headaches over the last two months. The Board finds that based on the foregoing, the Veteran’s migraine headaches most closely approximates to a 50 percent evaluation. The Veteran reported frequent headaches, described as a 9 out of 10 when severe, with light and noise sensitivity and nausea. Moreover, the Veteran indicated that debilitating headaches are treated with prescribed medication 2-3 times a month. Although, the Veteran only reported missing two days of work due to his headaches over the last two months, the Board finds that the Veteran’s migraine headaches more closely approximate to a 50 percent evaluation. See 38 C.F.R. §§ 3.102, 4.3, 4.7. Accordingly, a 50 percent evaluation for migraine headaches, the maximum schedular rating, is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Entitlement to a compensable evaluation for bilateral hearing loss as a residual of service-connected traumatic brain injury (TBI) Here, the Veteran should be afforded a VA examination to determine the current level of hearing impairment. Specifically, the Veteran was afforded a VA examination in March 2018. The VA examiner indicated that the Veteran had “hearing impairment with vertigo” more than once weekly, of less than one hour each episode. In the hearing impairment section of the examination; however, all the frequency designations were “0.” The examiner indicated that the test results were not valid for rating purposes as there was no recent audiogram on record. As such, the examiner did not cite to objective findings to support a diagnosis of hearing loss with vertigo and did not specify whether the Veteran has hearing loss in one ear or both. If the examiner is diagnosing hearing loss, there should be citation to objective findings of hearing loss upon which the diagnosis is based. The Board notes that the Veteran, upon examination in May 2013, was found to have normal hearing bilaterally. See May 2013 VA Audiological Examination. Additionally, the Board notes that under DC 6204, the rater is directed to separately rate hearing impairment and combine it with the diagnosis under DC 6204, thus this finding is relevant in applying the rating criteria. Considering the above questions, the Board finds that clarification of the evidence is essential in this case for an appellate decision. Therefore, a remand is necessary. For all the other issues being remanded, the Veteran was afforded a VA examination for his disabilities in June 2013, more than five years ago. The Board recognizes that, generally the mere passage of time is not a sufficient basis for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In this instance, however, the Veteran has described worsening symptoms of his knee, back, and PTSD. See September 2015 primary care note; October 2017 primary care note; and the December 2017 Rehabilitation Note. Likewise, the length of time from the Veteran’s last examination does not allow the Board to determine accurately the current level of severity of the service-connected disability. The Board notes that, where an increase in the disability rating is at issue for an already service-connected disability, as it is here, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When available evidence is too old for an adequate evaluation of the Veteran’s current condition, VA’s duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). As noted above, not only is this last examination too remote, but the examination may no longer reflect the Veteran’s current level of disability regarding his claimed condition. Consequently, a more contemporaneous examination is needed to fully and fairly evaluate the Veteran’s claim of an increased rating for his service-connected left shoulder impingement, IVDS of the thoracolumbar spine, DA of the left and right knee, and PTSD. See Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain and associate with the record all relevant VA treatment and any private treatment records identified by the Veteran. All records/responses received must be associated with the claims file. 2. After the foregoing, schedule the Veteran for a VA examination with a qualified clinician (examiner). The record, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should address the following: (a.) The current nature and severity of the Veteran’s hearing loss. (b.) If hearing loss is not present on testing, provide a medical opinion on whether the Veteran has “hearing loss with vertigo,” and if so, whether it is attributable solely to episodes of vertigo, or any other diagnostic finding under the criteria of § 4.87 of the VA Rating Schedule (Schedule of Ratings – Ear). The examiner should consider all subjective complaints, objective symptoms, and functional effects. (c.) The current nature and severity of the Veteran’s left shoulder impingement. (d.) The current nature and severity of the Veteran’s IVDS of the thoracolumbar spine. (e.) The current nature and severity of the Veteran’s DA of the left knee. (f.) The current nature and severity of the Veteran’s DA of the right knee. (g.) The current nature and severity of the Veteran’s PTSD. (Continued on the next page)   3. After completing the above actions, and any other development as may be indicated by any response received because of the action taken in the paragraph above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and after he has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel