Citation Nr: 18158028 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-02 596 DATE: December 14, 2018 ORDER Entitlement to an initial compensable rating for residuals of a traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran has no disabling residuals of his service-connected TBI; and his complaints of problems with his memory, dizziness, balance, seizures, and headaches are due to and the result of nonservice-connected residuals of a postservice cerebrovascular accident. CONCLUSION OF LAW The criteria of an initial compensable rating for residuals of a TBI are not met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8045 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1984 to December 1985. This matter comes before the Board of Veterans’ Appeals (Board) from a decision of a Department of Veterans Affairs (VA) Regional Office (RO) in January 2016 which granted service connection for residuals of a TBI and granted service connection for a scar, as a residual of a head injury, with each being assigned in initial noncompensable disability rating, all effective December 5, 2014. Background A September 1986 rating decision granted service connection for residuals of injuries of the right knee, right shoulder, fracture residuals of the right inferior pubic ramus with low back discomfort, and left rib fracture residuals, all of which stemmed from an inservice motor vehicle accident (MVA) (when he was thrown from the back of a pick-up truck). On VA general medical examination in 1986 the Veteran had no complaints of a psychiatric or neurological nature. Private clinical records show that the Veteran was treated for musculoskeletal complaints related to his inservice injury but he had no complaints of a psychiatric or neurological nature except to radicular complaints in his right leg from a lumbar injury. A November 1996 rating decision increased a 10 percent rating for fracture residuals of the inferior pubic ramus with low back discomfort to 40 percent. The Veteran was admitted on November 3, 2012, to the Jane Phillips Medical Center after he started a chain saw and felt a pop in his head, and thought he had been shot. A CT scan revealed a parenchymal hemorrhage in the right basal ganglia and a large amount of intraventricular hemorrhage. He was transferred to the St. John Medical Center and treated without surgery. On VA examination for TBI in January 2016 the Veteran’s claim file and electronic medical records were reviewed. The diagnosis was a TBI, reportedly from an inservice MVA. He denied any sequela but was told by his mother that he became a more impulsive spender after this incident. He reported that he started to have headaches 10 to 15 years after his head injury. On November 3, 2012, he sustained a right basal ganglion hemorrhage. He had owned and worked in his own company in Oil/Gas repair since 2005. He had slowed down since 2012. He stated his concentration and memory had been impaired since his hemorrhage. On examination the Veteran had no complaints of impairment of memory, attention, concentration, or executive functions. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. He had intact motor and sensory systems. His visual spatial orientation was normal. He had no subjective symptoms. As to neurobehavioral effects, he had only one neurobehavioral effect, i.e., his mother having noted that he was more impulsive with money, and it did not interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language and to comprehend spoken and written language. He did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI. He had a residual scar. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms. The Veteran did not have any residual conditions attributable to a TBI which impacted his ability to work. The examiner opined that the Veteran at least as likely as not had TBI residuals due to his inservice injury because of his account of his symptoms, and the police report with the account of the MVA, and both supported a diagnosis of TBI. On VA examination for TBI in November 2016 the Veteran’s claim file and electronic medical records were reviewed. On examination the Veteran had no complaints of impairment of memory, attention, concentration, or executive functions. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. He had intact motor and sensory systems. His visual spatial orientation was normal. He had no subjective symptoms. As to neurobehavioral effects, he had only one neurobehavioral effect, i.e., his mother having noted that he was more impulsive with money, and it did not interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language and to comprehend spoken and written language. He did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI. He had a residual scar. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms. The Veteran did not have any residual conditions attributable to a TBI which impacted his ability to work. Submitted at the November 2016 DRO informal conference was a May 2016 report from Dr. W. Lajara-Nanson who reported having known the Veteran since 2012 after he suffered an intraparenchymal cerebral hemorrhage, on the right, while he was starting a chainsaw. At that time he had felt a "pop" in his head. He was taken to the emergency room and was found to have a right intracerebral hemorrhage with midline shift and intraventricular extension. Since that injury he had had loss of fine motor skills on the left. He was initially admitted for approximately 21 days and was later sent to rehabilitation. Also, he suffered from seizures since that event. He was previously employed as a registered aircraft mechanic and heavy diesel mechanic but was unable to perform these duties. Particularly of concern had been the cognitive deficits that have affected him since the stroke causing him to be incapable of doing much of the work he has done in the past. He also reported that his balance was affected and even cooking had even become difficult. Post-stroke migraines had also been a sequela of the hemorrhage. He had been seen in April 2016 at which time he had continued to complain of issues with fine motor coordination and cognitive deficiencies. There was some concern as to whether he had a cerebral aneurysm, although a CT angiogram of the brain was performed with no evidence of an aneurysm. The private physician concluded by stating that given the above circumstances, the Veteran appeared to be unable to return to his previous duties as an aircraft mechanic and heavy diesel mechanic. The cognitive difficulties, as well as the loss of fine motor coordination on the left side of his body, had rendered working in this area difficult. In light of the submission of this private medical statement at the DRO hearing, the DRO obtained a VA medical opinion. After the Veteran’s records were reviewed, the VA medical opinion was that the Veteran’s service treatment records (STRs) did not in any way support finding that a TBI had occurred. The MVA report and medical notes showed orthopedic problems but no mention of even a loss of conscious or concussion. The two VA examinations in 2016 had no discussion of what was service related or not. The stroke (CVA) occurred in 2012 from which his neurological deficits all stemmed. Before this he was employed and fully functional. Even if he did sustain a TBI in service there would have had to have been direct trauma to brain tissue with wounds, surgery etc., to come even close to supporting this as a cause of CVA approaching 20 years later. But, there was no evidence of this. Also, there was no evidence that he had ever had an aneurysm, and even if he had there would have to be substantial medical evidence to support it as being secondary to service. His CVA occurred independently of active duty service and many years after service. His risk factors for this were tobacco use, alcohol use, obesity, hypertension, and hyperlipidemia all of which had no basis to be from a TBI. A TBI would have to cause considerable trauma to brain tissue to even increase the risk of a stroke. There was no etiological evidence of this. All this was further confirmed by the medical statement by Dr. W. Lajara-Nanson. That statement only supported finding that there had been an independent CVA in 2012 with resulting cognitive deficits at that time. There were no findings to relate the CVA to a prior TBI. It was also stated that there was no evidence to support a TBI in service. Contrary to the Veteran’s contention, an aneurysm and/or stroke (CVA) was not related to any active duty TBI. Subsequently, that VA physician also reported, as to putative seizures, that as a neurologist has indicated the Veteran’s seizures were secondary to his stroke, by the same reasoning they were not from subjective TBI symptoms many years before and had no etiological relationship to the TBI. Rating Principles Disability evaluations are determined by application of the criteria in the VA's Schedule for Rating Disabilities, and are based on average impairment in earning capacity and includes consideration of the entire history and consideration of the functional impairment of the ability to engage in ordinary activities, including employment. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. 38 C.F.R. §§ 4.1, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When a question arises as to which of two ratings apply under a specific diagnostic code, the higher is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Also, a higher rating may not be denied based on relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (noting that such improvement is “relevant to the appellant's overall disability picture”). Different evaluations may be assigned for separate periods of time based on the facts found, i.e., the evaluations may be staged. See Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007) (expanding the holding in Fenderson v. West, 12 Vet. App. 119 (1999) of assigning staged ratings at the time of an initial rating based on facts found, to be applicable even in subsequent increased rating claims). Diagnostic Code 8045 provides for the evaluation of TBI. 38 C.F.R. § 4.124a. There are three main areas of dysfunction listed 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. 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 these brain functions may be affected in everyone with cognitive impairment, and some functions may be affected more severely than others. In everyone, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Id. 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, if they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to 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 a Traumatic Brain Injury Not Otherwise Classified" table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified." Id. VA 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 a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, if the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: 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. 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. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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 to assign an 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" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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. Analysis The Veteran has reported having a variety of symptoms which he experiences, as well as his belief that they are due to an inservice head injury, i.e., his service-connected TBI. The Board acknowledges that he is competent to give evidence about what is observed or experienced. Layno v. Brown, 6 Veltap. 465 (1994). However, the Veteran lacks the competency to demonstrate that the symptoms he now experiences are due to an inservice head injury, as opposed to his postservice stroke (CVA). The relationship of his current symptoms to either the inservice head injury or to his postservice stroke is one which falls outside the boundaries of competent lay evidence and addresses the etiology of his current symptoms and, in turn, requires medical training, education, and expertise which the Veteran lacks. The lay belief that the Veteran’s disabling symptoms are due to his inservice head injury rather than his postservice stroke is outweighed by the competent and credible medical evidence that his current disabling symptoms are due solely to his postservice stroke. Significantly, he did not complain of any such symptoms until after the stroke in 2012, more than two decades after his military service. Further, both official examinations in 2016 found that he had no disabling symptoms due to his inservice head injury. Moreover, the Board has considered that statement from the Veteran’s private physician. In fact, this statement was reviewed by a VA clinician who stated that even the private physician’s statement supported finding that the Veteran’s reported complaints and symptoms were due to the postservice stroke and not the inservice head injury. For these reasons, greater evidentiary weight is placed on the results of examination findings and medical reports than the lay evidence in support of the appeal. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to an initial compensable evaluation for residuals of a TBI. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs