Citation Nr: 18159680 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-63 782 DATE: December 20, 2018 ORDER An initial disability rating of 100 percent for the residuals of a traumatic brain injury (TBI) is granted for the entire claim period. The appeal of the claim of entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. The Veteran served on active duty from January 1977 to January 1979. 2. As recorded in a November 2004 VA treatment record, the Veteran carried diagnoses of: psychotic disorder not otherwise specified (NOS); organic affective syndrome; dementia associated with brain trauma; anxiety; seizures; and depression. 3. In a February 2008 VA psychiatry medication management note, a VA clinician recorded that the Veteran lived in the upstairs of his mother’s barn, and used his mother’s house to shower. A mental status examination revealed: casual dress; neat grooming; fair attention and concentration; a pill-rolling tremor; good mood and appropriate affect; goal-directed, logical, and relevant speech; reports of possible auditory hallucinations; proper orientation; diminished immediate and recent memory, with remote memory intact; no suicidal or homicidal ideations; and poor to fair insight and judgment. The clinician diagnosed the Veteran with traumatic brain disorder with memory problems. 4. In October 2008, the Veteran reported for treatment at a VA facility and was seen by an advanced registered nurse practitioner. The practitioner noted that the Veteran was homeless and lived in his car. She then opined that the Veteran was not capable of completing a domiciliary application on his own and that community outreach had not been able to meet his needs. Lastly, she commented that the Veteran needed advocacy to get him into a safe living condition and that he needed assistance in monitoring his daily medications and nutrition. 5. In a December 2008 VA psychiatry medication management note, a VA clinician conducted a mental status examination that revealed circumstantial and tangential speech as well as fair to poor memory, judgment, and insight. The clinician diagnosed the Veteran with traumatic brain injury with significant cognitive effects. 6. In February 2009, H.A.—the Veteran’s local veteran service officer—submitted a function report regarding the Veteran for the Social Security Administration (SSA). In this report, H.A. indicated that she saw the Veteran on a daily basis. She stated that the Veteran did not take care of anyone else and that he needed special reminders regarding grooming, taking medication, performing basic house and yard work, taking care of his personal needs, and attending medical appointments. She then stated that the Veteran did not handle stress well as he could become very upset, confused, and apologetic. H.A. reported that she had observed unusual behaviors. Specifically, she stated that the Veteran had no income and had become afraid that he could no longer live in the woods anymore. Lastly, she remarked that the Veteran was a special needs adult and that he had received assistance to pay rent and car insurance. 7. In March 2009, Dr. Helder provided a psychological evaluation of the Veteran for a local department of health and office of disability. She reported that the Veteran lived alone and could shower and dress without assistance. She stated that the Veteran spent his days visiting friends at a VA facility, watching television, running errands, and cooking simple meals for himself. Additionally, she stated that he read the Bible, but had difficulty understanding exactly what he was reading. She also indicated that the Veteran received help from VA employees in terms of reading and filling out paperwork. Dr. Helder conducted a mental status examination and recorded her observations of the Veteran’s behavior. She stated that the Veteran was casually dressed and had good hygiene and grooming. She noted bilateral tremors in his arms and legs that were intermittent, but became more consistent and severe when he became anxious. She noted that the Veteran was blithe and talked excessively. The Veteran was oriented to person and place, but did not know the date or how to write the date. Additionally, Dr. Helder noted that the Veteran could not fill out paperwork because of his tremors and his difficulty with reading and reading comprehension. She then stated that the Veteran admitted to mild auditory hallucinations and noted that he demonstrated marked impairment in concentration skills, mental control, and working memory. She indicated that the Veteran scored a 15 on a mental state examination, which indicated severe impairment. Dr. Helder provided several diagnoses for the Veteran, including dementia due to head trauma. Lastly, Dr. Helder concluded that the Veteran was in no way capable of gainful employment as well as managing his own financial affairs. She then strongly recommended consideration of a money manager and stated that the Veteran had been financially abused by others in the past. 8. In addition to Dr. Helder’s evaluation, Dr. Buffone also provided a psychiatric review of the Veteran in March 2009 for SSA. Dr. Buffone diagnosed the Veteran with an organic mental disorder and anxiety-related disorder. Dr. Buffone then opined that the Veteran had memory impairment and disturbances in mood, with his impairment clearly in the severe range. Lastly, Dr. Buffone commented that the Veteran talked excessively due to anxiety, had difficulty reading and comprehending, suffered from mild hallucinations, and had marked cognitive impairment. Eventually, SSA determined that the Veteran was disabled and assigned a primary diagnosis of organic mental disorder as well as a secondary diagnosis of anxiety related disorder. 9. In a November 2009 VA psychiatry medication management note, a VA clinician noted that the Veteran was oriented to the day and date, but not the year. The Veteran received a diagnosis of traumatic brain injury with significant cognitive effects. 10. In another VA psychiatry medication management note from September 2011, the Veteran reported that he periodically thought someone was calling his name. The clinician noted an apparent problem with concentration, reading abilities, and memory. 11. In July 2018, Dr. Wilmoth—a non-VA psychiatrist—conducted a comprehensive psychological examination and completed a VA disability benefits questionnaire (DBQ) regarding TBI residuals. Following her examination, she concluded that the Veteran had a significant degree of cognitive dysfunction and stated that the Veteran would not be an acceptable candidate for employment at any exertion level. Within the completed DBQ, Dr. Wilmoth noted, among other deficits, a complete inability to communicate either by spoken and written language as well as comprehension of spoken and written language. Additionally, she noted that the Veteran’s memory deficits, his inability to remember instructions or learn new tasks, forgetfulness, inability to drive, a lack of sense of direction, anxiety, and tremors impacted his ability to work. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 100 percent for residuals of a TBI are met for the entire claim period. 38 U.S.C. §§ 1155, 5103A, 5107 (2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8045, 9304 (2007); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 2. The grant of a 100 percent rating for residuals of a TBI for the entire claim period renders moot the appeal for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board on appeal from January and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2014, the Board granted service connection for the residuals of a TBI, stemming from a claim initially filed in December 2007. Following the Board’s grant of service connection, the RO assigned an initial 10 percent rating in January 2015. In October 2015, the RO denied entitlement to a TDIU. An Initial Increased Rating for Residuals of a TBI As indicated above, the Board finds that the Veteran is entitled to a 100 percent initial rating for residuals of a TBI for the entire claim period. Accordingly, the Veteran’s appeal is granted. In support of this determination, the Board first notes that the schedular criteria by which TBIs are rated were changed during the pendency of the Veteran’s appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). These changes were made effective October 23, 2008. Where the rating criteria is amended during the course of an appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (holding that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise). In the instant case, the Board rates the Veteran’s TBI residuals for the entire claim period under the criteria in effect prior to October 23, 2008 as it finds doing so to be more favorable to the Veteran. Under the prior version of Diagnostic Code 8045, purely subjective complaints such as headaches, dizziness, or insomnia recognized as symptomatic of brain trauma are assigned a 10 percent rating and no more under Diagnostic Code 9304. This 10 percent rating is not to be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Here, a rating in excess of 10 percent under Diagnostic Code 9304 is permissible because, as stated previously under the Findings of Fact section, the Veteran has received multiple diagnoses of dementia associated with brain trauma. In applying the evidence of record to the criteria relevant to Diagnostic Code 9304, the Board finds that, during the course of his claim, the Veteran has displayed symptoms of gross impairment in thought processes or communication, an intermittent inability to perform activities of daily living, significant memory loss, and disorientation to time—as discussed above in the Findings of Fact section. Such symptoms are indicative of a 100 percent rating under the General Rating Formula for Mental Disorders, applicable for disabilities assigned Diagnostic Code 9304. For these reasons, an initial 100 percent rating is warranted for the entire claim period. TDIU A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is not seeking SMC at the housebound rate, and the record does not otherwise reasonably raise that matter. Further, as the Veteran does not have any additional service-connected disabilities independently ratable at 60 percent, a grant of a TDIU would not result in SMC. See id. The claim for a TDIU and an increased rating for residuals of a TBI have been recognized as arising at the same time and involving the same evidence. Hence the grant of the 100 percent rating for TBI residuals renders the claim for TDIU moot. The appeal as to the TDIU issue is therefore dismissed. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel