Citation Nr: 18151098 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-13 518 DATE: November 19, 2018 ORDER Entitlement to an initial rating greater than 10 percent for residuals of traumatic brain injury (TBI) prior to April 28, 2016, is denied. Entitlement to an initial rating of 100 percent for residuals of TBI is granted effective from April 28, 2016. REMANDED Entitlement to an effective date earlier than March 26, 2008, for the assignment of a 30 percent rating for bilateral hearing loss and vertigo is remanded. Entitlement to an effective date earlier than December 2, 2014, for the grant of service connection for residuals of TBI is remanded. Entitlement to an initial rating greater than 30 percent for migraine headaches is remanded. FINDINGS OF FACT 1. Prior to April 28, 2016, the Veteran’s TBI residuals were manifested by, at most, level 1 facet of impairment. 2. Effective April 28, 2016, the Veteran’s TBI residuals have been manifest by a total facet level of impairment. CONCLUSIONS OF LAW 1. For the period prior to April 28, 2016, the criteria for an initial rating greater than 10 percent for residuals of TBI have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045, 4.130, Diagnostic Code (Code) 9434 (2018). 2. For the period beginning April 28, 2016, the criteria for a total, 100 percent, rating for residuals of a TBI have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.124a, Code 8045, 4.130, Code 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to April 1969. This matter arises from March 2015 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a Board video conference hearing. A transcript of the hearing is of record. In May 2016, the Veteran submitted additional evidence without a waiver. For all substantive appeals received on or after February 2, 2013, any evidence submitted to the Board shall be subject to initial review by the Board unless the Veteran or the Veteran’s representative requests in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. 38 U.S.C. § 7105 (e) (2012). As the Veteran filed his VA Form 9, Substantive Appeal, in these matters after February 2013, a waiver of AOJ initial review is unnecessary. In April 2017, the Veteran’s representative submitted additional evidence and argument with a waiver of AOJ review in the first instance. 38 C.F.R. 20.1304(c). In August 2018, the AOJ effectuated an August 2018 Board decision that awarded a 50 percent rating for the Veteran’s service-connected posttraumatic stress disorder (PTSD) for the period from May 20, 2010, to August 2, 2011. The Veteran’s representative filed a Notice of Disagreement with that determination in October 2018, requesting an earlier effective date for the grant of service connection for PTSD. That matter is not presently before the Board and is referred to the AOJ for appropriate action. However, it should be noted that there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rating Greater than 10 Percent for Residuals of TBI The Veteran is in receipt of a 10 percent rating for residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Veteran contends that a rating greater than 10 percent is warranted. The rating criteria pertaining to rating TBI were amended in September 2008, with the new rating criteria made effective October 23, 2008. See 73 Fed. Reg. 54,693-706 (Sept. 23, 2008) (applying to “all applications for benefits received by VA on or after October 23, 2008.”). The criteria for Diagnostic Code 8045 effective from October 23, 2008, provide that there are three main areas of dysfunction that may result from a traumatic brain injury and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral dysfunction, and physical (including neurological). Each of those areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2018). The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury 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. A 100 percent rating is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage rating is assigned 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, a 70 percent rating is assigned if 3 is the highest level of evaluation for any facet. The Veteran was initially afforded a VA examination by a psychiatrist in April 2015. On evaluation, the examiner found that the Veteran had a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing (1); normal judgment (0); routinely appropriate social interaction (0); was always oriented to person, time, place, and situation (0); normal motor activity (0); normal visual and spatial orientation (0); subjective symptoms that did not interfere with work, instrumental activities of daily living, family, or other close relationships (0); no neurobehavioral effects (0); normal communication (0); and normal consciousness (0). In May 2016, the Veteran’s representative submitted a TBI evaluation report by a private clinical psychologist who evaluated the Veteran in April 2016. The examining psychologist reported that he was a QTC certified TBI examiner for VA. He submitted a comprehensive evaluation report that included the Veteran’s medical history and pertinent medical evidence. On evaluation the examiner found that the Veteran had moderate to severe functional impairment for memory, attention, concentration and executive functions (3) to total. In that regard, he reported objective evidence from “ANAM4” and “CNS.VS” (TBI military protocol) of moderate to severe (fluctuates with cognitive fatigue); poor judgments (inability to use executive functions); and word finding deficits. He further reported moderate impairment of judgment, noting that the Veteran relied on his wife to understand alternatives and choices and to make decisions (2); inappropriate social interaction such as laughing and joking to minimize social discomfort (1); frequent disorientation to two or more out of the four factors of orientation (person, time, place, and situation) (2); moderately decreased motor activity due to apraxia (3); moderately impaired visual spatial orientation (3); three or more subjective symptoms that interfere with cognitive functioning such as progressive fatigue, circadian rhythm sleep disorder with insomnia, and unstable gait and standing (2); neurobehavioral effects that frequently interfere with the workplace such as sensitivity to crowds, proximity to people, and misunderstanding social cues (2); confusion for verbal and written language and difficulty with word finding (1); and normal consciousness (0). At the Board hearing, the Veteran testified that symptoms of his TBI have been continuous for many years, and that some days are better than others. He added that he has learned to somewhat adapt to his symptoms. The Board notes that various disabilities and symptoms associated with the Veteran’s TBI have already been service-connected. Specifically, the Veteran’s headaches and PTSD have been considered, and each disability is separately rated. With that said, there may be some symptoms from those disabilities that overlap. Nonetheless, the April 2016 evaluation report shows that some of the level facets of impairment do not overlap. That includes the facet of cognitive impairment for memory, attention, concentration, and executive functions. In that regard, in rating the Veteran’s PTSD symptoms in August 2018, the Board remarked that his memory loss and concentration had been attributed to his TBI and so, those symptoms were not considered for purposes of determining the Veteran’s PTSD rating. As noted above, the Veteran was assigned both a level 3 facet of impairment and a total facet of impairment by the April 2016 examiner for moderate to severe impairment of memory, attention, concentration, and executive function. Thus, by resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s TBI residuals more closely approximate total facet of impairment in his cognitive effects pursuant to Code 8045 effective from the date of the April 28, 2016, neuropsychological examination. Accordingly, a total, 100 percent, rating is warranted effective April 28, 2016. The criteria for a rating in excess of 10 percent for residuals of TBI for the period prior to April 28, 2016, are not shown to have not been met. Although the Veteran testified that his symptoms have essentially remained the same throughout the rating period, findings from the VA examination in April 2015 outlined above more closely approximate the criteria for the presently assigned 10 percent rating for the period prior to April 28, 2016. The Board gives more weight to the VA objective examination findings than to the Veteran’s subjective report. Accordingly, the preponderance of the evidence is against a higher than 10 percent rating for residuals of the Veteran’s TBI prior to April 28, 2016. REMAND Earlier Effective Date Claims The Veteran’s representative has raised on behalf of the Veteran a claim of clear and unmistakable error in an April 1998 rating decision that denied service connection for hearing loss and tinnitus. In that regard, the Veteran’s representative asserts that the RO failed to apply correct legal standards as well as to properly develop claims for service connection for TBI, bilateral hearing loss, and vertigo. The Veteran’s arguments were evident in written statements and the March 2017 hearing testimony from the Veteran and his representative. See also motion to revise the April 1998 rating decision filed in September 2018. The Veteran’s representative has also asserted that there are missing VA treatment records that show hearing loss back to 1979. The Board finds that the CUE claims are inextricably intertwined with the current EED claims. Accordingly, consideration of the current EED claims must be deferred until the CUE claims are adjudicated. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Rating Greater Than 10 Percent Migraine Headaches The Veteran is presently in receipt of a 30 percent rating for his migraine headaches under 38 C.F.R. § 4.124a, Code 8100 for characteristic prostrating attacks that occur on an average once a month over the last several months. To meet the criteria for a 50 percent rating, the evidence must show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran was last examined by VA in April 2015, at which time he was noted to have characteristic prostrating attacks of migraine headache pain more than once a month lasting less than one day. He testified at his March 2017 Board hearing, that he experiences incapacitating headaches approximately two times a month and that he sometimes has to lie down in a dark room. Due to the passage of time since the last VA examination in April 2015, and the indication from the record that the Veteran’s headache symptoms have increased in severity since the April 2015 VA examination, the Board finds that the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his migraine headaches. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current level of severity of all impairment resulting from his service-connected migraine headaches. The examiner must provide all information required for rating purposes, to include a determination as to whether the Veteran’s migraine headaches are productive of severe economic inadaptability. 3. Adjudicate the matter of whether there was CUE in the April 1998 rating decision with respect to claims for service connection for bilateral hearing loss and residuals of TBI. 4. Only AFTER the above development has been completed, readjudicate the remaining claims on appeal. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shawkey, Counsel