Citation Nr: 18153231 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 17-05 336 DATE: November 27, 2018 ORDER A rating of 40 percent, but no higher, for residuals of a traumatic brain injury is granted. An initial compensable rating of 30 percent for tension headaches associated with traumatic brain injury is granted. FINDINGS OF FACT 1. The Veteran’s residuals of a TBI are shown to have a highest level of severity of Level “2” impairment for the applicable 10 facets. 2. The Veteran has frequent characteristic prostrating attacks that are not prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for residuals of a TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a Diagnostic Code (DC) 8045. 2. The criteria for a rating of 30 percent, but no higher, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.120, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from May 1997 to May 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 notification of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are not appropriate in this matter as the evidence establishes that the Veteran’s service-connected disability largely remained stable and constant. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to a rating in excess of 10 percent for residuals of a traumatic brain injury. Residuals of traumatic brain injury 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. Traumatic brain injury 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. DC 8045 is complex and comprehensive and gives much instruction to the rater, as follows: 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. 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. 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 underwent a VA examination for his residuals of a TBI in June 2015. He was not on continuous medication. He had mild memory loss, without objective evidence on testing, normal judgment, routinely appropriate social interaction, occasional disorientation to one of the four aspects (loses track of the day several times per week), and normal motor activity most of the time (occasional dizziness after physical exertion). He had mild impairment for his visual spatial orientation in that he would get lost in familiar neighborhoods. His subjective symptoms did not interfere with work or instrumental activities of daily living. While his neurobehavioral effects did not interfere with workplace interaction or social interaction, he endorsed a lack of compassion and moodiness and irritability. His communication was only occasionally impaired in that he would sometimes forget what he was talking about mid conversation. He had normal consciousness. The Veteran also asserted that his memory problems had been worsening. In his VA examination, the highest level of impairment for any facet was Level “1.” The Board finds this VA examination to have little probative value. This examination was performed by a general practitioner rather than one of the appropriate four specialists for TBI examinations. The Board acknowledges the Veteran indicated in correspondence that he believed his VA examination was inadequate and wished to have a new VA examination performed as this examination was not conducted by a specialist. However, the Board does not find that a new VA examination is required because of the probative value of the below private medical treatment records that more accurately assess the residuals of the Veteran’s TBI and were performed by a specialist (neurologist). The Veteran has submitted private medical records concerning the residuals of his TBI. A speech pathologist documented his decreased performance on tasks that reflected his memory and attention. Additionally, his other private medical records, documented by a neurologist, indicate that he has objective evidence of testing of mild impairment of memory, moderately impaired judgment, social interaction is occasionally inappropriate, always oriented, motor activity was normal most of the time, visual spatial orientation was moderately impaired, he has three or more subjective symptoms that moderately interfere with work, he has neurobehavioral effects that occasionally interfere with interactions but do not preclude them, he has inability to communicate either by spoken, written or both languages more than occasionally but less than half the time, and has normal consciousness. The highest level of impairment based on this evaluation amounts to Level “2” impairment for the above listed facets. The Board finds the private medical records to be highly probative. The Veteran sought an assessment from a private neurologist — one of the specifically enumerated specialists for TBI examinations (neurologist, psychiatrist, physiatrist, or neurosurgeon). The neurologist assessed the current state of the Veteran’s TBI residuals, and these records are entitled to more probative weight when compared to the VA examination performed by a general practitioner. After review of the competent and probative evidence, the Board finds that a rating of 40 percent for Level “2” cognitive impairment is warranted for his residuals of TBI as he has Level 2 impairment documented in multiple facets in his private treatment records. The Veteran does not have a Level “3” impairment in any of the facets documented in his private medical records or in his VA examination. The Board acknowledges the Veteran’s contention that his VA examination was inadequate, but finds that the Veteran’s private assessment of his TBI residuals — performed by a neurologist, a specialist, accurately depict his current disability and are given more weight. As such, a rating of 70 percent is not warranted. Additionally, a rating of 100 percent is not warranted as he does not have an altered state of consciousness. Therefore, the Board finds that a rating of 40 percent, but no higher, for Level “2” cognitive impairment is warranted. 2. Entitlement to a compensable rating for tension headaches associated with traumatic brain injury. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks; a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent evaluation is appropriate in cases of characteristic prostrating attacks occurring on an average of once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Characteristic” is “a trait, quality, or property or a group of them distinguishing an individual, group, or type.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 376 (1966). “Prostrating” means “lacking in vitality or will: powerless to rise: laid low.” Id. at 1822. “Completely” is defined as “to complete degree: entirely.” Id. at 465; “completely prostrating.” In other words, the headaches must render the veteran entirely powerless. Significantly, the use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria in the 50 percent rating must be met in order to warrant such a rating. The Board notes that § 4.7 is not applicable to DCs that apply successive rating criteria, such as DC 8100. It is successive because the criteria of each lower disability rating are included in the higher disability rating. Additionally, the term “productive of severe economic inadaptability” is also not defined in veterans’ law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446–47 (2004) (stating that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating”). The Veteran underwent a VA examination in June 2015. He did not use medication for his headaches. He acknowledged headache pain, constant head pain, and pain localized to the right side of his head and there was less than 1 per day. However, it was noted in the medical history section that the current headaches occur once every 3 days. Sensitivity to light was noted. The examiner recorded that he did not have characteristic prostrating attacks of migraine or non-migraine pain. The Veteran also reported that once every two weeks someone would have to cover one of his classes for him for approximately 45 minutes so he could recover from his headaches. The Veteran’s medical treatment records also document his headaches. He endorsed headaches two to three times per week, and that at least once a week he was forced to miss work because of his headaches. After review of the competent and probative evidence, the Board finds a rating of 30 percent, but no higher, for tension headaches is warranted. The Veteran has reported that he frequently has headaches where is unable to teach for a period of time. This is documented in his private medical treatment records, in addition to his VA examination. However, the VA examiner reported that the Veteran’s headaches were not characteristic of prostrating attacks. Yet, when resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran not being able to teach one of his classes at least once per week due to his headache pain is analogous to prostrating. 38 C.F.R. § 4.3. The Board also finds that the Veteran’s headaches were not prolonged attacks of severe economic inadaptability. He reported that his headaches only required someone to cover for his class for 45 minutes. Moreover, his headaches are not prolonged attacks wherein he is unable to maintain his position; thus, they are not productive of severe economic inadaptability. His records also indicate that he has recently started a new job that he enjoys, and that he has not reported difficulty with this position because of his headaches. The Board notes that the increased rating to 30 percent accounts for this increased headaches and down period from work as noted throughout the appeal period. See 38 C.F.R. § 4.1 (2018) (“The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.”).   In sum, the Board finds that the Veteran’s headaches warrant a rating of 30 percent, but no higher. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel