Citation Nr: 18158034 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 16-58 523 DATE: December 18, 2018 ORDER Service connection for a vision disability, diagnosed as photophobia, is granted. An increased rating of 70 percent for the residuals of a traumatic brain injury is granted throughout the claim period. A total disability rating based on individual unemployability is granted from May 2, 2011. An effective date earlier than May 2, 2011 for the grant of service connection for the residuals of a traumatic brain injury is denied. VETERAN’S CONTENTIONS The residuals of the Veteran’s in-service traumatic brain injury (TBI) are currently rated as 10 percent disabling, for mild memory loss, from May 2, 2011. The Veteran contends that this rating does not accurately reflect the severity of his disability, and that the effective date of the grant should be earlier. Specifically, he reports that he experiences difficulty with attention and concentration, as well as with temper, anxiety, depression, and mood swings. He reports that he has experienced residuals of his TBI from the time of his service to the present. The Veteran is also seeking service connection for a vision disability and a right shoulder disability. The Veteran contends that these disabilities had their onset during his active duty service. REMANDED The issue of entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of photophobia, which had its onset during his active duty service. See August 2012 VA Examination. 2. Throughout the claim period, the Veteran’s TBI residuals have been productive of occupational and social impairment in most areas, including work, school, social relations, thinking, and mood. The Veteran’s TBI residuals have not been productive of total occupational and social impairment throughout the claim period. See November 2012 Private Psychological Evaluation; VA Examinations dated August 2012, March 2017, May 2017. 3. The Veteran’s TBI residuals prevented him from securing or maintaining a substantially gainful occupation throughout the claim period. See November 2012 Private Psychological Evaluation; VA Examinations dated March 2017, May 2017. 4. The Veteran’s TBI residuals had their onset during his active duty service. His claim for service connection for residuals of a TBI was received by VA on May 2, 2011. See May 2011 Claim for Compensation; December 2012 Rating Decision. CONCLUSIONS OF LAW 1. The criteria for service connection for a vision disability are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for an increased rating of 70 percent, but no higher, for residuals of a traumatic brain injury are met throughout the claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 3. The criteria for a total disability rating based on individual unemployability are met throughout the claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 4. The criteria for an effective date earlier than May 2, 2011 for the grant of service connection for residuals of a traumatic brain injury are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 2003 to November 2008. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Entitlement to Service Connection for a Vision Disability Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Here, the Veteran has a current diagnosis of photophobia. See August 2012 VA Examination. The Veteran has also reported blurred and double vision, and occasional total loss of sight. See September 2013 Notice of Disagreement; November 2016 Substantive Appeal. The Veteran has reported that he has experienced these symptoms, in particular his photophobia and blurry vision, since the time of his active duty service. The Veteran is competent to report his own symptoms, and the Board finds him to be credible. The Veteran has been afforded one VA examination and opinion on his vision claim, in August 2012. The examiner opined that the Veteran’s current vision condition was related to his active duty service, on the basis of the Veteran’s report that he first experienced photophobia in service. The examiner’s opinion is competent, credible, and entitled to significant weight. Significantly, there is no probative evidence to the contrary. Therefore, the Board finds that the Veteran’s current vision disability had its onset during his active duty service. Accordingly, service connection for a vision disability is warranted. 2. Entitlement to an Increased Rating for Residuals of a TBI The Veteran’s TBI residuals are currently rated as 10 percent disabling for mild memory loss. TBI residuals are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045, which provides that emotional or behavioral residuals will be rated under the rating schedule for mental disorders (38 C.F.R. § 4.130) when there is a diagnosis of a mental disorder. Here, the Veteran has received diagnoses of posttraumatic stress disorder, mood disorder with depressive features, and a neurocognitive deficit. See November 2012 Private Psychological Evaluation; VA Examinations dated March 2017, May 2017. Although the Board has also considered other facets of the Veteran’s TBI residuals, the Board finds that a rating for emotional or behavioral residuals produces the highest level of evaluation, as discussed below. Therefore, the Board will rate the Veteran’s TBI residuals under the rating schedule for mental disorders. As indicated above, the Board finds that a higher rating of 70 percent is warranted throughout the claim period based on occupational and social impairment with deficiencies in most areas. For instance, the Veteran reported that he was unable to maintain work ever since separating from service, and that he had tried to attend college, but had withdrawn because he was failing most of his classes. See November 2012 Private Psychological Evaluation; May 2017 VA Examination. The Veteran also reported being unable to sustain a long term romantic relationship. Finally, the Veteran reported signs of short term memory loss, and was diagnosed with a neurocognitive deficit. See VA Examinations dated March 2017, May 2017. The Board finds that the criteria for a schedular rating higher than 70 percent are not met, because the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, or duration. For example, the Veteran has not reported persistent delusions or hallucinations. The Veteran has not reported grossly inappropriate behavior or intermittent inability to perform activities of daily living, nor has such been observed. Rather, the Veteran has reported keeping up various independent activities of daily living, such as preparing food, performing chores, shopping, and managing his finances. See November 2012 Private Psychological Evaluation. In addition, the author of the November 2012 evaluation noted that the Veteran displayed good social skills. Further, examiners and care providers throughout the claim period noted that the Veteran exhibited normal appearance and hygiene and orientation to person, time, and place. See November 2012 Private Psychological Evaluation; January 2013 VA Treatment Record; VA Examinations dated March 2017, May 2017. In determining that the criteria for a 100 percent rating are not met, the Board has considered the lay statements of record, namely the Veteran’s own statements, as to his symptomatology and the severity of his condition. It notes that those statements primarily describe symptoms, such as depression, anxiety, difficulty adapting to workplace stress, irritability, difficulty concentrating, and difficulty maintaining effective relationships, which are contemplated by the 70 percent, rather than the 100 percent rating criteria. In any event, to the extent entitlement to a 100 percent rating based on those symptoms is claimed, the Board concludes that the findings during medical evaluations, which do not reflect total occupational and social impairment, are more probative than the lay assertions of record. The Board has accordingly relied heavily on the VA examinations and VA and private treatment records showing limitation of function that, at most, approximates the criteria for a 70 percent evaluation. Finally, the Board has also considered ratings for other facets of the Veteran’s TBI residuals under the schedule for residuals of TBI not otherwise specified, in particular neurobehavioral effects and subjective symptoms of mild memory loss. Under the general schedule for TBI residuals, a rating of 40 percent is warranted for objective symptoms of mild memory loss, and a rating of 70 percent is warranted for neurobehavioral effects that frequently interfere with or preclude workplace or social interaction on most days, or that occasionally required supervision for safety. A rating in excess of 70 percent is not available for neurobehavioral effects of TBI residuals. A total disability rating is available for objective evidence of severe impairment of memory; however, there is no evidence throughout the claim period of more than mild memory impairment. See November 2012 Private Psychological Evaluation (noting borderline working memory); May 2017 VA Examination (noting a cognitive deficit, but not objective signs of memory impairment). Nor is there any evidence of other facets warranting a rating in excess of 70 percent, such as severely impaired judgement, consistent disorientation to person, time, place, or situation, severely decreased motor activity, severely impaired visual-spatial orientation, inability to communicate, or a persistently altered state of consciousness. See November 2012 Private Psychological Evaluation; VA Examinations dated March 2017, May 2017. Therefore, the Board finds that a rating for emotional or behavioral TBI residuals produces the highest level of evaluation, and that a rating in excess of 70 percent is not warranted. In short, based on the evidence and analysis above, the Board finds the criteria for a rating of 70 percent for mental and behavioral residuals of a TBI, but no higher, are met from November 7, 2012. Accordingly, a 70 percent rating, but no higher, is warranted. 3. Entitlement to a Total Disability Rating Based on Individual Unemployability The Court of Appeals for Veterans’ Claims (CAVC) has held that a total disability rating based on individual unemployability (TDIU) is part of a claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran has submitted evidence that the residuals of his TBI have prevented him from maintaining employment or staying in school. See March 2017 VA Examination. Therefore, the Board finds that an informal claim for a TDIU has been raised. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). As the Veteran’s claim for a TDIU comprises part of the appeal for an increased rating for TBI residuals and not an independent claim, the Board’s jurisdiction is limited to the consideration of the Veteran’s TBI residuals alone. In light of the grant made herein of an increased rating of 70 percent throughout the claim period, the schedular requirement is met. The remaining issue is whether the Veteran’s service-connected TBI residuals precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). At a November 2012 private psychological evaluation, the Veteran reported that he had not been able to keep a job since separating from service, due to his mental health issues. A March 2017 VA examiner noted a January 2017 mental health record stating: “I seriously doubt that this veteran is employable. He apparently has success with computer design but this seems to happen only when he is working by himself and at his own pace. The veteran becomes distracted if not disorganized and success escapes him.” A May 2017 VA examiner diagnosed the Veteran with a neurocognitive deficit involving “difficulty structuring and organizing thoughts, . . . difficulty structuring his learning activities, . . . [and] difficulty maintaining relationships, maintaining employment, and living independently.” In short, the Veteran’s own reports and the findings of his medical examiners indicate that he has been unable to secure or maintain employment due to his psychological TBI residuals ever since separating from service. The examiners’ findings are competent, credible, and entitled to significant weight. Significantly, there is no probative evidence to the contrary. Therefore, the Board finds that the Veteran’s TBI residuals have prevented him from securing or maintaining a substantially gainful occupation throughout the claim period. Accordingly, a TDIU is warranted from May 2, 2011, the effective date of his grant of service connection for TBI residuals. 4. Entitlement to an Effective Date Earlier than May 2, 2011 for the Grant of Service Connection for Residuals of a TBI Generally, the effective date of a grant of service connection is either the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The evidence indicates that the Veteran’s TBI residuals had their onset during his active duty service. See VA Examinations dated August 2012, May 2017. However, the RO did not receive the Veteran’s claim for service connection for TBI residuals until May 2, 2011. Therefore, an effective date earlier than May 2, 2011 is not warranted. REASONS FOR REMAND Service Connection for a Right Shoulder Disability Is Remanded. The Veteran is seeking service connection for a right shoulder disability, which he asserts had its onset during his active duty service. The Veteran has been afforded one VA examination on this claim, in August 2012. However, the examiner mistakenly evaluated the Veteran for a disability of the left shoulder, copying the findings from a previous VA examination not related to the Veteran’s right shoulder claim. See October 2011 VA Examination. Therefore, a remand is necessary to provide the Veteran a VA examination and opinion on his claim for service connection for a right shoulder disability. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination and opinion on his claim for service connection for a right shoulder disability. Upon physical examination of the Veteran and complete review of the claims file, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s right shoulder disability had its onset in or is otherwise related to his active duty service? The examiner must provide a fully articulated medical rational for the opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that the opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel