Citation Nr: 18149869 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-48 730 DATE: November 14, 2018 ORDER Entitlement to an initial compensable rating for traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran’s TBI is manifested by normal function in all facets. TBI residuals rated as a “1” or higher in one or more facets are not shown. CONCLUSION OF LAW The criteria for an initial compensable disability for TBI are not met or nearly approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Entitlement to an initial compensable rating for traumatic brain injury (TBI) Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; see also Fanning v. Brown, 4 Vet. App. 225 (1993). If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Veteran’s disability has been evaluated as noncompensable under Diagnostic Code 8045, which contemplates brain disease due to trauma. The regulations for traumatic brain injuries (TBI) were revised during the pendency of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. 38 C.F.R. § 4.124, Note (5) (2015). For claims received by VA prior to that effective date, a Veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). However, a Veteran whose residuals of TBI were rated by VA under a prior version of 38 C.F.R. 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). Prior to October 23, 2008, brain disease due to trauma under Diagnostic Code 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, was to be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated at a maximum of 10 percent under Diagnostic Code 9304, “Dementia due to head trauma.” This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. Part 4, § 4.124 a, Diagnostic Code 8045. Revised Diagnostic Code 8045 states 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. For residuals not listed in the Diagnostic Code that are reported on examination, they are to be evaluated under the most appropriate diagnostic code. 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 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. 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 a 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 (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. 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 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.” 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. Throughout the period on appeal the Veteran has reported headaches, dizziness, nausea, and memory impairment, all of which he is competent to report. The Veteran was provided with VA examinations for his TBI in August 2014, June 2016, and May 2017. At the August 2014 examination, the examiner noted the Veteran’s subjective symptoms of headaches, hypersensitivity to light, and flashes of light with headaches. Upon examination the Veteran’s motor activity was normal, he exhibited normal consciousness, and his ability to communicate and comprehend spoken and written language was normal. The examiner indicated that symptoms falling under other facets (memory, judgment, social interaction, orientation, visual spatial orientation, and neurobehavioral effects) were attributable to the Veteran’s service-connected posttraumatic stress disorder (PTSD). Regarding the Veteran’s reported headaches, the examiner opined that they were less likely than not related to the Veteran’s documented TBI. To support this opinion, the examiner stated that the Veteran recounted that his headaches began three months after his TBI in March 1968. There was no indication in records or per the Veteran that the headaches began within seven days of the TBI. Accordingly, the examiner stated that it was unlikely that the Veteran’s headaches would have persisted for 44 years and that his current chronic headache syndrome is most likely due transformed migraine or analgesic rebound headache. The Veteran’s June 2016 examination again noted the Veteran’s subjective symptoms of headaches and that the Veteran’s motor activity, consciousness, and communication ability were normal. The examiner again indicated that the Veteran’s symptoms falling under other facets were attributable to his PTSD. The examiner opined that the Veteran’s headaches are less likely than not attributable to his TBI, noting that the headaches began months after the TBI per the Veteran’s own report and that headaches with a remote onset are unlikely to be due to TBI. The Veteran received a third VA examination for TBI and headaches in May 2017. Upon examination, the Veteran exhibited normal function in all facets. The examiner noted the results of neuropsychological testing in May 2013 were unreliable and suggested the likelihood of symptom magnification. Further, the Veteran’s history post-discharge of high performance in college and a long successful career as a lineman and crew supervisor is consistent with history of a mild TBI without lasting residuals. The examiner again noted the Veteran’s reports of headaches, but opined that they are less likely than not related to his TBI. In support, the examiner noted that the headaches began well after the TBI and that service treatment records do not indicate there was a chronic headache condition during service. In May 2017 the Veteran also received an examination for PTSD, and the psychologist addressed the Veteran’s subjective complaints regarding his memory and judgment. The psychologist opined that the Veteran’s memory and judgment symptoms are most likely due to functional impairment from his PTSD. The examiner noted that cognitive symptoms due to TBI are common immediately following a mild TBI but do not persist. However, the Veteran’s cognitive symptoms had their onset many years later. Accordingly, the examiner found that there are no current cognitive or psychological symptoms that are attributable to the Veteran’s TBI. Based on the above evidence, the Board finds that a compensable rating is not warranted for the Veteran’s TBI. Although the Veteran has headaches and memory impairment, examination has repeatedly indicated that those symptoms are due to other factors. All of the VA examiners consulted opined that the Veteran’s headaches are not due to his TBI due to the remote onset and persistence, which is not typical for a mild TBI. Further, his memory and other cognitive complaints are attributable to his PTSD and have been considered in the rating awarded for that disability. At every examination, all facets have been normal. (Continued on the next page)   In summary, the Board finds that a preponderance of the evidence is against a finding that the Veteran has any current symptoms due to his TBI. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and a compensable rating is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel