Citation Nr: 18157388 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-07 926 DATE: December 12, 2018 ORDER Entitlement to an initial compensable rating for traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran does not manifest any residuals of his service-connected TBI. CONCLUSION OF LAW The criteria for an initial compensable rating for TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7. 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2005 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the record shows that additional VA treatment records and VA examination report were associated with the record within a year of the April 2012 rating decision. However, since the RO never determined whether the additional VA treatment records and VA examination report constituted new and material evidence with respect to the April 2012 rating decision, that decision never became final and is the proper rating decision on appeal. 38 C.F.R. § 3.156(b). In June 2018, the Board remanded the issue on appeal for further development. As a preliminary matter, VA regulations provide that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Pursuant to the June 2018 Board remand directives, the RO scheduled a VA examination for the Veteran’s increased rating claim for TBI residuals. See July 2018 Exam Scheduling Request. However, the Veteran did not appear for this examination and has not provided an explanation or good cause for doing so. The October 2018 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the August 2018 VA examination, and provided notice of the provisions of 38 C.F.R. § 3.655(b). Failure to receive notice of an examination could provide good cause for the failure to report. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examination, this fact alone does not constitute good cause for failure to report. Critically, the Veteran has not disputed the report in the SSOC, provided to the Veteran’s last known address of record and not returned as undeliverable, that he failed without good cause to report for the needed VA examination, or asserted that he did not receive notice of the examination. The July 2018 examination request reflects the Veteran’s last known address of record. See February 2018 21-0820. In this regard, while VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claims. Woods v. Gober, 14 Vet. App. 214, 224 (2000). The Veteran has not indicated that he wants to reschedule the examination. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s claim will be rated based on the evidence of record. 1. Entitlement to an initial compensable rating for TBI. 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 percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. DC 8045 provides for the evaluation of TBI. 38 C.F.R. § 4.124a. Under DC 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, DC 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. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. VA is to 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, they are to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, 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. Id. VA 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.” Id. The following physical (including neurological) dysfunction shall be evaluated 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. Any other physical dysfunction is to be evaluated separately under the most appropriate diagnostic code, as long as the same signs and symptoms are not used to support more than one evaluation. Id. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” 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.” A 100 percent evaluation is to be assigned if “total” is the level of evaluation for one or more facets. Otherwise, the overall percentage evaluation assigned is based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Id. 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, more than one evaluation based on the same manifestations cannot be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, separate evaluations are assigned for each condition. Id at Note (1). Upon review of the totality of the record, the Board concludes that the Veteran experiences no residuals of the TBI he incurred in service, and thus, a compensable rating is not warranted for the Veteran’s TBI at any point during the appeal period. The Veteran was afforded VA TBI examinations in September 2011, September 2012, and September 2014. With regard to the TBI facets, a level of severity of “1” was assigned for the memory, attention, concentration, and executive functions facet, indicating that there was evidence of mild impairment of memory, attention, concentration, or executive functions, but without objective evidence on testing. See September 2012 and September 2014 VA examination reports. In this regard, the Board acknowledges the Veteran’s reported symptoms of memory, speech, attention, and concentration problems throughout the appeal period, resulting in cognitive impairment. However, these symptoms have been attributed to his mental health diagnoses, rather than his TBI. The June 2014 VA examiner for posttraumatic stress disorder (PTSD) opined that it was more likely that the Veteran’s reported cognitive difficulties were related to psychiatric diagnoses, as opposed to TBI, based on the nature of the injury, time elapsed since the TBI, successful performance in school after the accident, and progressive worsening of symptoms over time. Similarly, the August 2014 VA PTSD examiner stated that the Veteran’s TBI was unlikely causing significant impairment and that his concentration and focus complaints were due to his trauma-related disorder, considering the TBI occurred 8 years prior, its atypical progression, and review of the medical evidence. In an October 2017 VA treatment record, the treating physician determined that the Veteran’s reported memory and speech problems were most likely related to his PTSD, instead of his TBI. The Veteran is in receipt of a separate rating for his PTSD disability under DC 9411, 38 C.F.R. § 4.130. As his inattention, memory, concentration, and executive function impairments have not been associated with his TBI and are instead contemplated by his PTSD rating, these symptoms may not be considered under DC 8045. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Accordingly, the Board finds that the evidence of record warrants a “0” for this TBI facet. A level of severity of “0” has been assigned for the judgment facet, indicating that VA examiners found evidence of normal judgment. A higher level of severity of “1” is not warranted unless an examiner finds evidence of mildly impaired judgment, including symptoms such as impairment for complex or unfamiliar decisions, occasional inability to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. The Veteran’s judgement has been consistently evaluated as intact during the appeal. A level of severity of “0” has been assigned for the social interaction facet, indicating appropriate social interaction. A higher level of severity of “1” is not warranted unless social interaction is occasionally inappropriate. There was no evidence of inappropriate behavior on clinical evaluations by VA examiners. Rather, his behavior has been consistently considered appropriate. A level of severity of “0” has been assigned for the orientation facet, indicating that VA examiners found evidence that the Veteran is always oriented to person, time, place, and situation. He has consistently been evaluated as alerted and oriented during clinical evaluations by the VA examiners. A higher level of severity of “1” is not warranted unless an examiner finds evidence such as occasional disorientation to one of the four aspects (person, time, place, situation) of orientation. A level of severity of “0” has been assigned for the motor activity (with intact motor and sensory system) facet, indicating normal motor activity. A higher level of severity of “1” is not warranted unless an examiner finds that motor activity is normal most of the time, but mildly slowed at times due to apraxia (in ability to perform previously learned motor activities. There is no finding of motor impairment during the pendency of the appeal. A level of severity of “0” has been assigned for the visual spatial orientation facet, indicating that VA examiners found such orientation to be normal. A higher level of severity of “1” is not warranted unless an examiner finds evidence of mild impairment, including occasionally getting lost in unfamiliar surroundings, having difficulty reading maps or following directions, and being unable to use assistive devices such as GPS. There is no finding of visual spatial orientation impairment. A level of severity of “0” is assigned for subjective symptoms facet that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships. A higher level of severity of “1” is not warranted unless a VA examiner finds evidence of three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. In this regard, the Veteran has reported headaches associated with his TBI. However, the September 2014 VA examiner determined that the headaches were not residual deficits from his TBI, based on the current International Headache Society Criteria and the onset of headaches. The Board notes that the Veteran is in receipt of a separate schedular ratings for tinnitus and convergence insufficiency with accommodative disorder and photosensitivity associated with TBI. A level of severity of “1” has been assigned for the neurobehavioral effects facet, indicating evidence of neurobehavioral impairment, noted as irritability by the September 2014 VA examiner and irritability, decreased attention and anxiety by the September 2012 VA examiner. See September 2012 and September 2014 VA examination reports. As noted above, the Veteran’s reported attention problems have been attributed to his PTSD, and not associated with TBI residuals. Additionally, the January 2016 VA PTSD examiner stated that symptoms of irritable mood, anxiety and depression that impair functioning in social and work environments were the result of the Veteran’s mental health disorder. Therefore, the Board finds that the evidence of record warrants a “0” for this TBI facet. Finally, a level of severity of “0” has been assigned for the communication facet, indicating that VA examiners found evidence that the Veteran is able to communicate by spoken and written language (expressive communication), and comprehend spoken and written language. A higher level of severity of “1” is not warranted unless an examiner finds comprehension or expression, or both, of either spoken language or written language that is only occasionally impaired, and communication of complex ideas. In conclusion, based on the evidence above, a compensable rating is not warranted for the Veteran’s TBI at any point throughout the appeal period. While the Veteran has demonstrated symptoms of cognitive and neurobehavioral impairment, the evidence does not show any residual symptoms of TBI that are not already contemplated by separate ratings assigned, or that such symptoms are related to his TBI instead of his psychiatric diagnoses. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel