Citation Nr: 18154688 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-20 510 DATE: December 4, 2018 ORDER An initial 10 percent rating for service-connected traumatic brain injury (TBI) with tension headaches is granted. FINDING OF FACT The Veteran’s TBI with tension headaches is manifested by cognitive impairment consisting of mild loss of memory (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. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for TBI with tension headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8045, 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from August 1945 to September 1946 and in the United States Navy from December 1947 to May 1953. He is in receipt of the Combat Action Ribbon. This matter is on appeal from a February 2015 rating decision. The Board previously remanded this case in October 2018 for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial compensable rating for TBI with tension headaches The Veteran seeks an initial compensable rating for his service-connected TBI with tension headaches. He contends that his symptoms are more severe than contemplated by his currently-assigned noncompensable rating. The Veteran’s TBI with tension headaches is currently rated noncompensable effective October 22, 2014 under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from a TBI: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 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 is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” (the Table) addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms, and provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, as well as a fifth level, the highest level of impairment, labeled “total.” These facets include memory, attention, concentration and executive function, judgment social interaction, orientation, motor activity, visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other subjective symptoms. A level 0 impairment is consistent with a 0 percent disability rating, level 1 with a 10 percent disability rating, level 2 with a 40 percent disability rating, level 3 with a 70 percent disability rating, and the highest level (“total”) with a 100 percent disability rating. When a veteran displays subjective symptoms, such symptoms should be applied to the Table, unless the symptoms may be evaluated under another diagnostic code. For example, if there are any emotional or behavioral symptoms that have been clinically diagnosed, such symptoms should be evaluated under the schedule of ratings for mental disorders listed in 38 C.F.R. § 4.130. Similarly, if the residuals of the TBI include other diagnosable symptoms such as (but not limited to) motor and sensory dysfunction, visual impairment, hearing loss and tinnitus, loss of sense of smell and taste, or any other disorders, they should be evaluated under the appropriate diagnostic code, and then combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Turning to the relevant evidence of record, the Board notes that the Veteran underwent VA TBI examinations in February 2015 and January 2016. However, neither examination is adequate for rating purposes because the VA examiners did not conduct neuropsychological testing as is required to accurately assess the Veteran’s current functional status. Moreover, the January 2016 examination was conducted by a physician assistant, who did not review the Veteran’s claims file. Therefore, these examinations are accorded no probative weight and will not be further discussed herein. Pursuant to the October 2018 Board remand, the Veteran underwent another VA TBI examination in February 2018. The examiner reviewed the Veteran’s entire claims file and conducted neuropsychological testing. Upon examination, it was found that the Veteran had a complaint of mild loss of memory (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 Veteran reported subjective symptoms of mild anxiety and mild occasional headaches, which were not found to interfere with work, instrumental activities of daily living or work, family or other close relationships. The Veteran was found to have one or more neurobehavioral effects, described as mild irritability and moodiness, but they do not interfere with workplace or social interactions. Judgment, motor activity, visual spatial orientation, and consciousness were found to be normal. Social interaction was found to be routinely appropriate and the Veteran was found to be always oriented to person, time, place and situation. The Veteran was found to be able to communicate by spoken and written language and to comprehend spoken and written language. Based on the foregoing, the Board finds that a 10 percent rating for TBI with tension headaches is warranted for the period on appeal. On examination, the Veteran was found to meet the criteria for level 1 impairment for the facet of cognitive impairment related to memory, attention, concentration, and executive functions. Level 1 impairment under the Table found at 38 C.F.R. § 4.124a corresponds with a 10 percent disability rating. As the Veteran was not found to meet the criteria for level 2 impairment in any of the facets of cognitive impairment or other residuals of TBI, he is not eligible for a disability rating in excess of 10 percent. Under Diagnostic Code 8045, VA is to separately evaluate any residuals of TBI 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. In this instant, the medical evidence of record shows that the Veteran has diagnoses of anxiety and tension headaches. First, although the Veteran reported mild anxiety on examination, the examiner determined that the Veteran’s anxiety is more likely than not related to his service-connected depression, rather than his TBI. As the Veteran is already in receipt of a 70 percent disability rating for depression, a separate rating for anxiety is not warranted. The Board has also considered whether the Veteran is eligible for a separate rating for his tension headaches. Under Diagnostic Code 8100, which contemplates the criteria for migraine headaches, a 10 percent rating is assigned for headaches characterized by characteristic prostrating attacks averaging one in two months over the last several months. 38 C.F.R. § 4.124a. The Veteran underwent VA headaches examinations in February 2015, January 2016, and February 2018, all of which found the Veteran to have headaches as a residual of his TBI. However, none of the examinations found the Veteran to have characteristic prostrating attacks of headache pain. Therefore, the Board does not find that a separate compensable rating under Diagnostic Code 8100 for residual tension headaches is warranted. In reaching the above conclusions, the Board has considered the Veteran’s argument that the VA examinations have not adequately captured the extent and severity of his symptoms. The Board finds that, as a layperson, the Veteran is competent to report observable symptoms he experiences through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The evaluation of cognitive impairment and other residuals of TBI requires expertise that the Veteran is not shown to possess. Competent evidence concerning the nature and extent of the Veteran’s TBI has been provided by the medical personnel who have examined him during the current appeal and who have made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination report, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran’s statements in support of his claim. Accordingly, the Board finds that an initial 10 percent rating, but no higher, for TBI with tension headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel