Citation Nr: 18146401 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-23 258 DATE: November 1, 2018 ORDER Entitlement to an initial rating of 100 percent for TBI effective April 23, 2013 is granted. Entitlement to an effective date earlier than April 23, 2013, for service connection for TBI is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. Prior to December 21, 2014, it is at least as likely as not that the Veteran exhibited a total level of severity for his memory, attention, concentration, and executive function facet; and a level “3” severity for several other facets. 2. On April 23, 2013, the Veteran filed an original claim for service connection for TBI; there are no prior formal or informal service connection applications. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial rating of 100 percent for TBI prior to December 31, 2014, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2018). 2. The criteria for an effective date prior to April 23,2013, for the grant of service connection for TBI have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1996 to January 2000. The Board notes that the Veteran’s April 2016 substantive appeal included the issue of service connection for headaches associated with TBI. In a September 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for headaches associated with TBI. As this constitutes a full grant of the benefits sought on appeal, the appeal as to this issue has terminated. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to an initial rating of 100 percent for TBI prior to December 21, 2014 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 (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The criteria for evaluation of TBI were amended effective October 23, 2008. The final rulemaking specified that the new, more favorable criteria cannot be applied prior to that date. 73 Fed. Reg. 54693 (Sept. 23, 2008). As the current claim was filed after October 2008, the new criteria are applicable during the entire appeal period. Since October 23, 2008, the amended criteria recognize the validity and impact of the subjective criteria reported by the Veteran, and ratings in excess of a minimal ten percent are allowable. The current criteria provide that 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. Evaluate cognitive impairment 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. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Evaluate emotional/behavioral dysfunction 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, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. 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. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: 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. Assign a 100 percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation 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. Note (1): 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, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of 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 DC 8045. Note (5): A Veteran whose residuals of TBI are rated under a version of § 4.124a, DC 8045, in effect before October 23, 2008 may request review under DC 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that Veteran’s disability rating to determine whether the Veteran may be entitled to a higher disability rating under DC 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). As a preliminary matter, the Board notes that the Veteran is service-connected for headaches associated with TBI under a separate DC. His TBI rating includes associated posttraumatic stress disorder (PTSD) and psychiatric disorders, and is rated as noncompensable from April 23, 2013; and rated as 100 percent disabling from December 31, 2014. The Veteran’s TBI occurred in 1999 when he was hit from behind and stomped on by a fellow soldier. See, e.g., May 2015 VA Examination. During a May 2015 VA examination, the Veteran exhibited severe impairment of memory, attention, concentration, and executive functions; moderately severe impairment in judgment; inappropriate social interaction most or all of the time; occasional disorientation; mildly slowed motor activity at times; moderately impaired visual spatial orientation; three or more subjective symptoms that mildly interfere with work; one or more neurobehavioral effects that interfere with or preclude workplace and/or social interaction on most days or require supervision for safety; inability to communicate more than occasionally but less than half the time; and normal consciousness. He was also diagnosed with associated PTSD, major depressive disorder, and alcohol use disorder, which caused occupational and social impairment with occasional decrease in work efficiency and included symptoms such as depressed mood; anxiety; suspiciousness; weekly panic attacks; chronic sleep impairment; mild memory loss; disturbances of mood and motivation; inability to establish and maintain effective relationships; difficulty adapting to stressful situations; and suicidal ideation. In a June 2015 rating decision, the AOJ assigned a 100 percent disability rating for TBI effective on December 31, 2014, finding a “total” level of severity for memory, attention, concentration, and executive functions; a “3” for judgment; a “3” for social interactions; a “2” for orientation; a “1” for motor activity; a “2” for visual spatial orientation; a “1” for subjective symptoms; a “3” for neurobehavioral effects; and a “2” for communication. Prior to the 100 percent rating, the Veteran underwent a February 2014 VA examination that determined TBI was etiologically related to service. That examination found no problems with memory, attention, concentration, and executive functions; normal judgment; appropriate social interaction; appropriate orientation; normal motor activity; normal visual spatial orientation; subjective symptoms that did not interfere with work; no neurobehavioral effects; normal communication; and normal consciousness. The Board notes that the Veteran’s TBI occurred in 1999, 15 years prior to the first relevant VA examination of record. The Board also notes that VA examinations only 16 months apart came to conflicting conclusions, with one indicating the TBI residuals were noncompensable, and one indicating that they were 100 percent compensable. The AOJ has accepted the validity of the results of the May 2015 VA examination, and finds no medical reason for improvement or worsening to explain the disparity in examination results. VA regulations instruct that different examiners at different times will not describe the same disability in the same language. 38 C.F.R. § 4.2. As such, it is the responsibility of the rating specialist to interpret examination reports in light of the whole record, reconciling various reports into a consistent picture. Id. Overall, the Board can find no compelling reason that the residuals were mild enough to be noncompensable and then became 100 percent compensable after 16 months. The Board finds that it is at least as likely as not that the Veteran had a similar level of disability at the time of the April 2013 claim as he did on December 31, 2014, the effective date of the 100 percent disability rating. Therefore, resolving reasonable doubt in favor of the Veteran, a 100 percent disability rating is warranted effective April 23, 2013. 2. Entitlement to an effective date earlier than April 23, 2013, for service connection for TBI Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply. The Veteran filed an original claim for entitlement to service connection for TBI on April 23, 2013. In a March 2014 rating decision, the AOJ granted service connection for TBI effective April 23, 2013, rated as noncompensable. In a June 2015 rating decision, the AOJ increased the rating to 100 percent disabling effective December 31. 2014. In a July 2015 notice of disagreement, the Veteran stated that the effective date “should go back to the date of my discharge,” and TBI should be rated as 100 percent disabling effective April 23, 2013. Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. See 38 U.S.C. § 5110(a). As the assignment of an effective date for an award of service connection is specified by statute and regulation, the Board has no authority to disregard these requirements. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board observes that any references to TBI residuals in the VA clinic records between this time period could not support an application for service connection under 38 C.F.R. § 3.157(b)(1) as VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree). Therefore, under the laws and regulations pertaining to effective dates, April 23, 2013, is the appropriate effective date for the grant of entitlement to service connection for TBI as that is the date of receipt of the Veteran’s original claim for service connection of the issue. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. June 1999 service treatment records reflect treatment for left knee pain after the Veteran fell. Examination resulted in a diagnosis of Osgood Schlatter’s disease. There is another undated entry for left knee soft tissue injury. The Veteran’s November 1999 separation examination does not reflect a left knee disorder, and he indicated that he did not have any knee issues in his November 1999 report of medical history. Current VA treatment records reflect that that the Veteran takes ibuprofen for knee pain. See, e.g., February 2018 VA Treatment Records. During a February 2014 VA examination, the Veteran was diagnosed with left knee strain. After examining the Veteran and reviewing the claims file, the examiner determined that the current left knee strain is less likely than not etiologically related to service. The examiner opined the treatment records reflected that the original left knee strain had resolved, and further opined that a knee strain is “self-limiting.” The examiner, however, did not discuss the in-service diagnosis of Osgood Schlatter’s disease which requires further discussion in an addendum opinion. 2. Entitlement to service connection for a right knee disorder is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a right knee disorder because no VA examiner has opined whether the Veteran has a diangosed right knee disorder that is etiologically related to service. In this case, the Veteran has sought treatment for “knee pain” and has claimed service connection for a right knee disorder. VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). On remand, the RO must obtain a VA examination of the Veteran’s right knee. The matter is REMANDED for the following action: 1. Obtain VA treatment records since July 2018 and associate them with the claims file. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of the diagnosed Osgood Schlatter’s disease of the left knee and any diagnosed right knee disorder. With respect to the left knee, the examiner is requested to answer the following questions: a) Is Osgood-Schlatter’s disease a congenital or developmental defect? b) Did Osgood-Schlatter’s disease pre-exist the veteran’s service? c) If Osgood-Schlatter’s disease is not a congenital defect, did the disease permanently increase in severity due to the veteran’s military service? d) Does the Veteran currently suffer from Osgood-Schlatter’s disease? e) Is it at least as likely as not that any current left knee disability is related to the in-service diagnosis of Osgood-Schlatter’s disease? With respect to the right knee, the examiner must opine as to whether it is at least as likely as not that any diagnosed right knee disorder is etiologically related to his active duty service? A complete rationale must be provided for these opinions. If the examiner opines that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 3. After completing the actions detailed above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel