Citation Nr: 18148464 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-21 053 DATE: November 7, 2018 ORDER Entitlement to a rating of 70 percent for residuals of a traumatic brain injury (TBI) is granted. Entitlement to a rating in excess of 70 percent for residuals of a TBI is denied. Entitlement to a rating in excess of 30 percent for migraine headaches is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s residuals of a TBI have been characterized by moderate impairment of memory, attention, concentration, or executive function resulting in moderate functional impairment, which is a level 3 impairment for the memory, attention, concentration, and executive functioning facet of cognitive impairment; the Veteran’s TBI residuals have not been characterized by a total impairment in any facet. 2. The Veteran’s migraine headaches have not been characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran’s tinnitus is assigned a single 10 percent rating, which is the maximum evaluation authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for residuals of a TBI have been met for the entire period on appeal. 38 U.S.C. §§ 1114, 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8045 (2017). 2. The criteria for a rating in excess of 70 percent for residuals of a TBI have not been met for the entire period on appeal. 38 U.S.C. §§ 1114, 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8045 (2017). 3. The criteria for a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8100 (2017). 3. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1996 to July 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s representative withdrew the claim for entitlement to an increased rating for an acquired psychiatric disorder in a September 2016 correspondence. This withdrawal was made prior to the transfer of the appeal to the Board. As such, this claim is not before the Board. See 38 C.F.R. § 20.204(b)(3). In an April 2016 rating decision, the RO granted service connection for migraine headaches and tinnitus, and assigned them a 30 percent and 10 percent disability rating, respectively. The RO stated that both were granted as secondary to the Veteran’s service-connected TBI. The Veteran did not file any documents with VA expressing disagreement with the April 2016 rating decision. However, the migraine headaches and tinnitus are a manifestation of the Veteran’s service-connected TBI. When the Veteran disagreed with the amount of compensation awarded for residuals of a TBI, he did not limit his appeal to one manifestation, but rather was seeking the highest rating or ratings available for disability due to her service-connected back disability. See AB v. Brown, 6 Vet. App. 35 (1993). Moreover, regulation provides that VA is to evaluate any physical dysfunction associated with TBI under an appropriate diagnostic code. 38 C.F.R. § 4.124a, Diagnostic Code 8045. For these reasons, the Board concludes that when the Veteran appealed the rating assigned for TBI, his appeal encompassed ratings for all manifestation of the condition. The award of a separate rating for migraine headaches and tinnitus does not limit the Board’s jurisdiction to less than it has acquired via the notice of disagreement filed in response to the February 2015 rating decision. Therefore, the issues before the Board include the rating for migraine headaches and tinnitus. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Traumatic Brain Injury The Veteran contends that his residuals of a TBI warrant a higher rating throughout the period on appeal. The Veteran’s residuals of a TBI are currently evaluated as 40 percent disabling. Effective October 23, 2008, VA amended the criteria for rating residuals of TBIs, or more specifically, neurological and convulsive disorders, including under Diagnostic Code 8045. 73 Fed. Reg. 54693 (Sept. 23, 2008). This amendment applies to applications received by VA on and after October 23, 2008. The former criteria apply to applications received by VA before that date. Here, the Veteran filed his claim for an increased rating in November 2014. Accordingly, the current rating criteria for TBI are applicable. Diagnostic Code 8045 provides that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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 may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a 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 Board will evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Board will 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 a TBI. For residuals not listed here that are reported on an examination, the schedule instructs the rater to evaluate under the most appropriate diagnostic code. The Board will evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 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 Board will consider the need for special monthly compensation (SMC) 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. 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, 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 co-morbid 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. With regard to physical dysfunction, the Board notes that the Veteran has been assigned separate compensable ratings for his migraine headaches and tinnitus, which are associated with TBI. These ratings will be discussed in further detail below. With regard to emotional/behaviour dysfunction resulting from TBI, the Board notes that the Veteran has been assigned a separate compensable rating for his major depressive disorder with anxiety disorder associated with TBI. The Board notes this issue was withdrawn and therefore is not in appellate status. The Veteran’s residuals of a TBI are currently rated at 40 percent disabling. A rating in excess of 40 percent requires a “3” to be assigned as the highest level of a facet or a “total” evaluation to be assigned for one or more facets. The Board finds that for the memory, attention, concentration, and executive function facet, a level 3 impairment is appropriate. The medical evidence reflects objective evidence on testing of moderate impairment of memory, concentration, or executive functioning resulting in moderate functional impairment, which meets the criteria for a level 3 impairment in this facet. As such, the Veteran is entitled to a rating of 70 percent disabling for residuals of a TBI. The Veteran attended a private provider assessment, performed by K.D., Ph.D., in April 2016. The assessment found that the measurement of cognitive impairments directly attributed to TBI supports disability rating of 70 percent. As noted above, a 70 percent rating is warranted for moderate impairment of memory, attention, concentration, or executive functioning resulting in moderate functional impairment. At the April 2016 assessment, the Veteran reported having difficulty remembering things, has a lot of difficultly performing essential duties of his job, and is unable to work because of his memory. He felt like he is in fog at meetings and he had lost accounts because of his problems. The Veteran reported his supervisor has threated to fire him because of his problems at work. The assessment stated that based on objective testing, deficits were noted for executive functioning, attention, language, abstraction, delayed memory, and orientation consistent with his TBI. The evaluator performed objective tests that indicated impairment in functioning. Specifically, the evaluator found that the results of the Minnesota Clerical Test was a valid representation of the Veteran’s ability to attend to a task. The Veteran’s results were in the 4th percentile for numbers and under the 1st percentile for names. The evaluator stated that scores in this range are likely associated with impaired cognition from TBI. In addition, the Veteran scored 16/30 on the Montreal Cognitive Assessment, where 26/30 represents a normal range of functioning. The evaluator stated that this indicates cognitive impairment as a result of TBI. In summary, the evaluator found that the measurements of cognitive impairment directly attributed to TBI supports a disability rating of at least 70 percent. He also stated that this level of severity likely existed on the date of the Veteran’s claim, November 3, 2014. Considering the evaluator’s opinion and the objective evidence showing moderate impairment in memory, attention, concentration, or executive functions, the Board finds that the Veteran’s residuals of a TBI most closely approximates the 70 percent rating criteria. A rating in excess of 70 percent is not warranted unless the Veteran exhibited a total level of impairment in one or more of the facets. 38 C.F.R. § 4.124a, Diagnostic Code 8045. As explained in more detail below, the evidence of record does not show that the Veteran’s impairment warrants a total level of impairment in any of the facets. As such, the preponderance of the evidence is against finding the Veteran is entitled to a rating in excess of 70 percent. For a total impairment in cognitive functioning, objective evidence showing severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment is required. A total impairment could also be found for severely impaired judgment, consistent disorientation, severely decreased motor activity, severely impaired visual and spatial orientation, complete inability to communicate, or persistently altered state of consciousness. The Veteran attended a March 2016 VA examination for evaluation of residuals of a TBI. The examiner found that in the facet of memory, attention, concentration, executive function, the Veteran had objective evidence on testing of mild impairment resulting in mild functional impairment. The Veteran exhibited normal judgment, appropriate social interaction, normal orientation, normal motor activity, mildly impaired visual spatial orientation, subjective symptoms that mildly interfere with work, normal ability to communicate, and normal consciousness. The examiner’s findings do not equate to a total impairment in any of the applicable facets. In addition, the Veteran’s treatment records and the private provider evaluation do not indicate total impairment in any of the applicable facets. Private provider treating records indicate migraine headaches and discord in relationships, which is compensated for in the separate compensable rating for migraine headaches and depressive disorder. A July 2014 treatment note shows normal concentration, orientation to person, place and time, organized thought process, and no impairment in memory. The April 2016 private provider evaluation noted deficits in executive functioning, attention, language, abstraction, delayed memory, and orientation, but did not indicate total impairment that meets the criteria described above. The Board now turns to application of the rating schedule to the residuals of the Veteran’s in-service TBI for which individual ratings are warranted under other diagnostic codes. As noted above, the Veteran has been awarded a separate compensable rating for a psychiatric disability, headaches, and tinnitus. There is no competent evidence of record that the Veteran’s TBI residuals cause motor and sensory dysfunction; hearing loss; loss of sense of smell and taste; gait problems, coordination, and balance problems; speech or other communication difficulties; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; or endocrine dysfunctions. The Board has also considered the direction under Diagnostic Code 8045 to consider whether SMC is warranted. The treatment records and examination reports relevant to the current claim and appeal do not show that the Veteran is in need of regular aid and attendance of another person, and is not housebound. The Board has also considered SMC under 38 U.S.C. § 1114(s). The Veteran has been granted a total disability rating based on individual unemployability (TDIU) as of July 29, 2016, the first day following his last day of employment. A TDIU based on a single service-connected disability, when the Veteran also has an additional service connected disability independently ratable at 60 percent, may result in additional benefits, such as SMC, even if a 100 percent combined schedular evaluation is in effect. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, the Veteran’s TDIU was not based on a single service-connected disability. The TDIU was granted based on his service-connected residuals of a TBI, major depressive disorder with anxiety, and headaches. The Veteran stated on his application for increased compensation based on unemployability that all of these conditions prevented him from following a substantially gainful occupation. In addition, the Veteran had reported previous difficulty working due to both cognitive issues and interpersonal problems with his supervisor. As such, the evidence does not support finding that the Veteran’s TDIU was based on a single service-connected disability. Accordingly, SMC is not applicable. Therefore, the preponderance of the evidence indicates that the Veteran’s TBI residuals most closely approximate the 70 percent rating criteria, but no higher. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Migraine Headaches The Veteran’s migraine headaches are currently evaluated at 30 percent disabling for the entire period at issue. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A rating of 30 percent is warranted for migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. Id. A rating of 50 percent requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The Board notes that neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined “prostrating.” However, Dorland’s medical dictionary defines “prostration” as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary, 1531 (32st ed. 2012). The Veteran attended a VA examination in March 2016. He reported having headaches to some degree every day. He reported that when he has a severe headache he cannot work. The examiner stated that the Veteran exhibited characteristic prostrating attacks once every month. The examiner indicated that the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The Veteran’s 2014 private treatment records indicate that he reported headaches from 2-to-3 days a week to nearly every day. He reported the headaches lasted from 45 minutes to 2-to-3 hours or sometimes longer. He stated his symptoms improve with being in a dark room and lying down. The Veteran also stated that at times he “powers through” the headaches or self-medicates with alcohol. The preponderance of the evidence does not support finding that the Veteran meets the criteria for a 50 percent disabling evaluation for migraine headaches. Although the Veteran has reported daily headaches, the evidence does not indicate that the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Of note, the Veteran worked full time through July 28, 2016. He reported frequent daily headaches to his private provider and VA examiner prior to this date, but the record indicates he was able to maintain employment through this period, with some time lost due to illness. The Veteran reported that his TBI, headaches, and depression prevented him for securing and following substantially gainful employment after that date. After evaluating the Veteran and taking into considering his complaints of daily headaches, as well as the symptoms associated with the headaches, the March 2016 VA examiner determined that he has characteristic prostrating attacks once every month and he does not have very frequent and completely prostrating and prolonged attacks of pain productive of severe economic inadaptability. The Board finds the VA examiner’s opinion the most probative evidence of record regarding the severity of the Veteran’s migraines, as the examiner took into consideration the Veteran’s lay statements and his opinion is supported by the medical evidence of record. Therefore, the preponderance of the evidence is against finding that the Veteran is entitled to a rating in excess of 30 percent for migraine headaches. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Tinnitus The Veteran’s tinnitus is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, with a 10 percent rating beginning November 3, 2014. (Continued on the next page)   Diagnostic Code 6260 pertains to recurrent tinnitus and provides for only one rating: 10 percent, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran’s tinnitus has been assigned this rating throughout the period on appeal. As the Veteran’s tinnitus has been assigned the maximum schedular rating throughout the period on appeal, there is no legal basis to award a higher schedular evaluation. As such, entitlement to a rating for tinnitus in excess of 10 percent is not warranted on a schedular basis. Accordingly, the appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel