Citation Nr: 18147539
Decision Date: 11/05/18	Archive Date: 11/05/18

DOCKET NO. 11-27 986
DATE:	November 5, 2018
ORDER
Entitlement to an initial evaluation in excess of 10 percent for traumatic brain injury (TBI) with residual headaches and giddiness is denied.
FINDING OF FACT
The evidence of record shows that no facet of the Veteran's TBI residuals manifests at a level higher than mildly impaired.
CONCLUSION OF LAW
The criteria for entitlement to an initial rating higher than 10 percent for TBI residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.124a, Diagnostic Code 8045.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1965 to March 1967.
Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
The issue decided herein was most recently remanded by the Board in November 2015.  At that time, the RO was instructed to provide the Veteran with a VA examination to determine the current nature and severity of his service-connected TBI disability.  Pursuant to the Board’s November 2015 Remand directives, the Veteran was provided with a VA Review Evaluation of Residuals of Traumatic Brain Injury (R-TBI) examination and a VA Headaches (including Migraine Headaches) examination in June 2018.  As such, the Board finds that the RO substantially complied with its previous Remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).  
The Board acknowledges that its previous Remand also addressed the issue of entitlement to service connection for bladder cancer.  However, in a June 2018 Rating Decision, the RO granted entitlement to service connection for bladder papillary urothelial carcinoma, claimed as bladder cancer.  As this is a total grant of the benefit sought on appeal for that issue, it is no longer before the Board.  
Residuals of TBI are evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. TBI residuals are rated in proportion to the impairment of motor, sensory, or mental function. 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 
Diagnostic Code 8045 is complex and comprehensive, and gives much instruction to the rater.
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 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. 
The rater is to 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." 
The rater is to 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. 
The VA rater must also 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 requires consideration of the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," which 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. 
For the facet memory, attention, concentration, executive functions, a "0" level of impairment is assigned with no complaints of impairment.  A "1" level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing.  A "2" level is assigned with objective evidence on testing of mild impairment.  A "3" level is assigned with objective evidence on testing of moderate impairment.  A "total" level is assigned with objective evidence on testing of severe impairment.
For the facet judgment, a "0" level of impairment is assigned for normal judgment. A "1" level is assigned with 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. 
A "2" level is assigned with 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. A "3" level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A "total" level is assigned with 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 and activities.
For the facet social interaction, a "0" level of impairment is assigned when social interaction is routinely appropriate. A "1" level is assigned when social interaction is occasionally inappropriate. A "2" level is assigned when social interaction is frequently inappropriate. A "3" level of impairment is assigned when social interaction is inappropriate most or all of the time.
For the facet orientation, a "0" level of impairment is assigned when always oriented to person, time, place and situation. A "1" level is assigned when occasionally disoriented to one of the four aspects of orientation. A "2" level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A "3" level is assigned when often disoriented to two or more of the four aspects of orientation. A "total" level is assigned when constantly disoriented to two or more of the four aspects of orientation.
For the facet motor activity, (with intact motor and sensory system) a "0" level of impairment is assigned for normal motor activity. A "1" level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A "2" level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A "3" level is assigned for motor activity moderately decreased due to apraxia. A "total" level is assigned for motor activity severely decreased due to apraxia.
For the facet visual spatial orientation, a "0" level of impairment is assigned when normal. A "1" level is assigned when 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). A "2" level is assigned when 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. A "3" level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A "total" level is assigned when 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.
For the facet subjective symptoms, a "0" level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A "1" level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of 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). A "2" level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of 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).
For the facet neurobehavioral effects, a "0" level of impairment is assigned for 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 more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A "1" level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A "2" level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A "3" level is assigned with 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. 
For the facet communication, a "0" level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A "1" level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A "2" level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A "3" level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. 
A "total" level is assigned for 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.
For the facet consciousness, a "total" level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma.
The following notes apply to Diagnostic Code 8045.  See Notes (1)-(4), 38 C.F.R. § 4.124a, Diagnostic Code 8045.
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 diagnostic code 8045.
The Veteran was provided with a VA Review Evaluation of Residuals of Traumatic Brain Injury (R-TBI) examination in June 2018, at which time he was diagnosed as having traumatic brain injury (TBI) and posttraumatic headaches.  
Regarding memory, the Veteran reported short-term memory problems.  However, the VA examiner noted, “[a] complaint of mild memory loss (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.” 
The report reflected that his judgment was “normal.” 
Regarding social interaction, the Veteran was “routinely appropriate.” 
Regarding orientation, the examiner noted that the Veteran appeared as always oriented to person, place, time, and situation. 
Concerning motor activity, the examiner assessed the Veteran as “normal.” 
The Veteran's visual-spatial orientation was also “normal.” 
Regarding subjective symptoms, the Veteran reported mild daily headaches as well as lightheadedness.  The VA examiner classified these as, “[s]ubjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships.”
The examination report also indicated that there were no neurobehavioral effects. 
Regarding communication, the Veteran manifested the ability to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. 
Finally, the Veteran's consciousness was normal. 
The examiner added that the Veteran’s residuals due to his TBI included headaches as well as dizziness/vertigo.
Diagnostic imaging studies revealed areas of low attenuation in the subcortical and periventricular white matter that were nonspecific, but were findings commonly seen with chronic small vessel disease.  No intraparenchymal or extraaxial hemorrhage was seen, and there was no hydrocephalus.  Although there was intracranial atherosclerosis present, the visualized paranasal sinuses and mastoid air cells were clear.  The impression was white matter hypodensities (nonspecific, but commonly seen with chronic small vessel disease) as well as intracranial atherosclerosis.
The Veteran was also provided with a VA Headaches (including Migraine Headaches) examination in June 2018, at which time he was diagnosed as having posttraumatic headaches.  At that time, the Veteran reported that he continued with headaches and memory problems, and that he experienced dizziness as well as headaches almost daily which were located in the back of his head towards the left side.  However, the Veteran did not experience characteristic prostrating attacks of migraine/non-migraine headache pain.  The Veteran's treatment plan did not include taking medication for the diagnosed headache condition.  Finally, the VA examiner opined that the Veteran’s diagnosed headache condition did not impact his ability to work.  
The competent and probative findings on clinical examination showed that the Veteran did not manifest with an impairment higher than mild (level 1 impairment) on any of the relevant facets.  As, the Board finds that the preponderance of the evidence is against assignment of an initial rating higher than 10 percent. 38 C.F.R. §§ 4.1, 4.10, 4.124a, Diagnostic Code 8045.  
Additionally, the Veteran’s associated headache symptomatology does not warrant a separate compensable evaluation.  Under Diagnostic Code 8100, the maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability.  A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months.  A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months.  A noncompensable disability rating is warranted for migraine headaches with less frequent attacks.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  The rating criteria do not define "prostrating," nor has the Court.  (Cf. Fenderson v. West, 12 Vet. App. 119 1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.).  By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness."  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."  Here, however, the Veteran experienced no characteristic prostrating attacks of migraine/non-migraine headache pain.  As such, a separate compensable evaluation for headaches under Diagnostic Code 8100 is not warranted.  
In sum, the Board finds that the preponderance of the evidence of record shows that the Veteran's TBI facets manifest at no more than mildly impaired and the assigned 10 percent rating is appropriate. 38 C.F.R. § 4.124a, DC 8045.
The Veteran is entitled to a staged rating for any part of the initial rating period where either or all of his disabilities manifested at a more severe rate of disability. As set forth above, the Board finds that the Veteran's disability has manifested at the noted rate throughout the entire rating period.
In reaching this decision, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim of entitlement to a higher initial rating, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999); see also 38 C.F.R. § 4.3.
Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2015); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  The Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected disability are inadequate.  Here, as noted above, the VA examiner found no functional impairment stemming from the Veteran's service-connected disability.  Therefore, it cannot be said that the criteria under which these disabilities are evaluated do not contemplate this Veteran's symptoms. 
A Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  There is no indication that there are combined effects resulting from all of the Veteran's service-connected disabilities that impact the disability picture of the service-connected disability on appeal. 
The Board therefore concludes that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and the criteria for submission for consideration of assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  
Finally, the Veteran has not asserted that his service-connected disability renders him unable to obtain or maintain gainful employment consistent with his level of education and work history, but without regard to age.  Accordingly, entitlement to a total disability rating based on individual unemployability has not been raised by the record.

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Anthony M. Flamini, Counsel