Citation Nr: 18161125 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-10 596A DATE: December 28, 2018 ORDER New and material evidence has been submitted to reopen the previously denied service connection claim for a back disorder. To this extent only, the claim is granted. New and material evidence has been submitted to reopen the previously denied service connection claim for a chronic gynecological and urinary disorder, to include hysterectomy. To this extent only, the claim is granted. Beginning June 26, 2013, entitlement to an initial 10 percent evaluation for the residuals of traumatic brain injury (TBI) is granted. Beginning June 26, 2013, entitlement to an initial evaluation greater than 10 percent for residuals of TBI is denied. Entitlement to an initial evaluation greater than 50 percent for migraine headaches associated with TBI is denied. REMANDED The claim of entitlement to service connection for a back disorder, to include lumbar strain, arthritis, and degenerative disc disease (DDD) is remanded. The claim of entitlement to service connection for a neck disorder, to include arthritis and DDD is remanded. The claim of entitlement to service connection for a thoracic spine disorder, to include arthritis and DDD is remanded. The claim of entitlement to service connection for a chronic gynecological and urinary disorder, to include hysterectomy is remanded. The claim of entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A February 1992 rating decision declined to reopen a previously denied claim for service connection for a back disorder, to include lumbar strain, and denied service connection for a chronic gynecological and urinary disorder, to include hysterectomy. The Veteran did not appeal this decision, and no relevant additional evidence was received within the year after notification of the decision. 2. Since February 1992, evidence has been received which was not previously considered and relates to unestablished facts, raising the reasonable possibility of substantiating the claims for service connection for a back disorder and for a chronic gynecological and urinary disorder. 3. Beginning Prior to June 26, 2013, the service-connected residuals of TBI are manifested by symptoms of memory loss and inability to concentrate, establishing a score of 1 on the TBI scale. 4. Beginning June 26, 2013, the service-connected residuals of TBI are manifested by symptoms of memory loss and inability to concentrate, establishing a score of 1, and no greater, on the TBI scale. 5. The service-connected migraine headaches associated with TBI are evaluated as 50 percent disabling effective June 26, 2013. The diagnostic code does not afford a higher evaluation associated for this disability. CONCLUSIONS OF LAW 1. The February 1992 decision which denied the claim for service connection for a back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to open the previously denied claim for service connection for a back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The February 1992 decision which denied the claim for service connection for a chronic gynecological and urinary disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 4. New and material evidence has been received to reopen the previously denied claim for service connection for a chronic gynecological and urinary disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. Beginning June 26, 2013, the criteria for an initial evaluation of 10 percent for the service-connected residuals of TBI are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8045 (2018). 6. Beginning June 26, 2013, the criteria for an initial evaluation of greater than 10 percent for the service-connected residuals of TBI are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.3, 4.7, 4.124a, DC 8045 (2018). 7. The criteria for an initial evaluation greater than 50 percent for migraine headaches associated with TBI are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran service on active duty in the Women’s Army Corps, U.S. Army, from February 1966 to November 1968, and from January 1969 to May 1973. These claims arise from rating decisions of the Regional Office (RO) of the U.S. Department of Veterans Affairs (VA) dated in February 2014, wherein service connection for a back disorder, a chronic gynecological disorder, arthritis of the neck and spine, headaches, and TBI was denied; dated in May 2016, wherein service connection for TBI and migraine headaches was granted and evaluated as zero and 30 percent disabling, respectively, effective June 26, 2013; and dated in March 2018, wherein entitlement to TDIU was denied. Although the agency of original jurisdiction (AOJ) determined that new and material evidence had been presented to reopen the previously denied claims for service connection for a back disorder and a chronic gynecological disorder, the Board must adjudicate the new and material issue before considering the claims on their merits. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In addition, the AOJ has awarded higher initial evaluations for the service-connected TBI and migraine headaches. Notwithstanding, as the evaluations afforded are not, in the case of the service-connected TBI, the highest afforded by the regulations and have not been made effective at the date service-connection was granted, the issues remain before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues are thus recharacterized as on the front page of this decision.   New and Material When a claim to reopen is presented, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1.-2. New and material evidence to reopen the previously denied claims for service-connection for a back disorder and for a chronic gynecological and urinary disorder. Service connection was originally denied for residuals of back injury in a May 1978 rating decision based on a finding that the Veteran did not evidence chronic back injury residuals. Notification of the decision was provided in May 1978. Later in the same month, the Veteran underwent VA examination, during which she was diagnosed with chronic lumbosacral strain, by history. Post-operative laparotomy, for tubal pregnancy-N.S.C. was also diagnosed. See May 1978 VA Examination Report. A June 1978 confirmed the previous denial. Notification was provided by a July 1978 letter. In a February 1992 rating decision, the AOJ declined to reopen the previously denied claim for a back disorder. The AOJ explained that the medical evidence submitted since the previous, 1978, rating decision, showed complaints of and treatment for back pain following an inservice motor vehicle accidence (MVA) and a post-service injury involving being bucked by a horse, but that there was no diagnosis of a back disorder. In the February 1992 rating decision, the claim for service connection for chronic gynecological and urinary disorder was also denied, because no chronic gynecological or urinary disorder had been noted during active service, and that the medical evidence did not present such a current diagnosis. The Veteran did not appeal the denial, and no additional evidence was submitted within the year after notification of the rating decision. Since the February 1992 rating decision, the Veteran has submitted evidence of a chronic back disorder and of a chronic gynecological and urinary disorder. Concerning the back, VA treatment records so that the Veteran was found to exhibit multilevel degenerative disc disease and foraminal stenosis at L5 with nerve root compression by magnetic resonance imaging (MRI) in 2016. See CAPRI Treatment Records (rec’d 1/11/2017), pp. 47 of 99. In addition, these records show an escherichia coli urinary tract infection in 2016, anemia in 2009, that the Veteran was weaned off HRT estrogens in 2013. In addition, these records show a history of partial total hysterectomy with a history ectopic pregnancy and endometriosis. See Id., 47-48 of 99; see also CAPRI Treatment Records (rec’d 5/24/2016), pp. 20, 34, 40, and 72 of 77. This previously unconsidered evidence directly relates to the unestablished fact underlying the prior denial, a diagnosis of a back disorder, and diagnoses of and residuals of chronic gynecological and urinary tract disorders. Hence reopening is appropriate in both cases. The claims for service connection for a back disorder and for a chronic gynecological and urinary tract disorder are addressed in the remand immediately following this decision. Increased Ratings Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate DCs identify the various disabilities. See 38 U.S.C. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected TBI is currently rated pursuant to 38 C.F.R. § 4.124a for neurological conditions and convulsive disorders. Under Diagnostic Code 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. 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. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. 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, separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC, 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 TBI Not Otherwise Classified” table. 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.” Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate DC: 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 TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate DC. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. 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, and 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, a 70 percent evaluation will be assigned 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 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, 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 in order to assign a particular 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” TBI, which may appear in medical records, refer to a classification of TBI 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. See 38 C.F.R. § 4.124a, DC 8045. The Veteran’s service-connected migraine headaches are evaluated pursuant to Diagnostic Code 8100. A 50 percent evaluation is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is the highest evaluation afforded for migraine headaches under the DC. See 38 C.F.R. § 4.124a, DC 8100. 1.-2. Entitlement to an initial compensable evaluation for the residuals of TBI prior to August 7, 2017, and to an evaluation greater than 10 percent beginning August 7, 2017 Service connection for the residuals of TBI was granted in a May 2016 rating decision, and evaluated as zero percent disabling, effective June 26, 2013. The Veteran appealed the evaluation assigned and, in an August 2017 rating decision, the evaluation was increased to 10 percent, effective August 7, 2017. The Veteran and his representative continue to argue that higher evaluations are warranted both before and after August 7, 2017. At the outset, the Board finds that the medical evidence supports a 10 percent evaluation for TBI prior to August 7, 2017. In an April 2016 VA examination, the Veteran reported subjective complaints of memory and concentration problems. However, the VA examiner then opined that that these symptoms were not part of the TBI. Conversely, however, the same subjective complaints of mild memory loss, attention and concentration reported on VA examination in August 2017 were attributed to the service-connected TBI and evaluated as 10 percent disabling. The VA examiner in August 2017 did not offer any rationale explaining the difference between then and 2016. There is no other explanation in the record for the difference in attribution of these symptoms. See April 2016 and July 2017 VA Examinations for TBI. Therefore, according the Veteran all benefit of the doubt, a 10 percent evaluation is warranted for subjective complaints of mild memory loss, attention and concentration, scoring a facet score of “1” beginning June 26, 2013. See 38 C.F.R. § 3.102. However, an evaluation greater than 10 percent is not warranted at any time during this appeal. The medical evidence does not show that the Veteran has reported any subjective complaints other than mild memory loss, attention and concentration that have not been evaluated and compensated under another DC. Her reported and observed subjected and objective complaints of headaches have been evaluated separately under the DC for migraine headaches. See February 2018 VA Examination for TBI. Therefore, complaints of headaches, subjective or objective, cannot be evaluated under DC 8045, as doing so would violate the rule against pyramiding. Accordingly, an evaluation of 10 percent for residuals of TBI is warranted beginning June 26, 2013. However, the preponderance of the evidence is against an evaluation greater than 10 percent at any time during the pendency of this appeal. 2. Entitlement to an initial evaluation greater than 50 percent for migraine headaches associated with TBI Service connection for migraine headaches as the residuals of TBI was granted in a May 2016 rating decision, and evaluated as 30 percent disabling, effective June 26, 2013. The Veteran appealed the evaluation assigned and, in an June 2017 rating decision, the evaluation was increased to 50 percent, effective June 26, 2013. The Veteran and his representative continue to argue that a higher evaluation warranted for the migraine headache disorder. The Board observes that 50 percent is the highest evaluation afforded by the DC. This is the highest evaluation afforded by the diagnostic criteria. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board has considered whether the Veteran’s migraine headache disorder could be evaluated under another, higher, evaluation. However, the Veteran’s migraine headaches have not shown involvement of any other factor that would warrant evaluation of the disability under other provisions of the rating schedule. Accordingly, as there are no other criteria under which a higher evaluation can be assigned, an evaluation of greater than 50 percent is not warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).   REASONS FOR REMAND 1. Entitlement to service connection for a back disorder, to include lumbar strain and to a chronic gynecological disorder. These claims have been reopened. The medical evidence shows current diagnoses of a back disorder, to include DDD, and a chronic gynecological and urinary tract disorder to include the residuals of escherichia coli urinary tract infection, and anemia with a prior history of acute and chronic pelvic inflammatory disease, right ectopic pregnancy with partial and total hysterectomy, ruptured left ectopic pregnancy and left salpingo-oophorectomy. In addition, service treatment records (STRs) show inservice injury in a MVA during which the Veteran was found to have sustained head injury and afterward to experienced back pain, was hospitalized for an ovarian cyst which spontaneously resolved, and diagnosed with recurrent cysto-urethritis. See STRs, pp. 18, 21-22 of 97. Moreover, the Veteran attests she has had back pain and repeated, recurrent gynecological and urinary symptoms from service to the present. Accordingly, VA examination is indicated. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2.-3. Entitlement to service connection for a neck disorder and a thoracic disorder, to include arthritis, and DDD. In addition to medical evidence of a back disorder, the file contains medical evidence of DDD of the cervical and thoracic spine. Also in this case, the record presents inservice evidence of injury to the spine in the same MVA in which the Veteran argues that she injured her lower back. Moreover, the Veteran attests that her neck and thoracic pain has been continuously present since active service. Accordingly, VA examination is also indicated here as well. See 38 C.F.R. § 3.159(c)(4); McLendon, supra.   4. Entitlement to TDIU. The claim for TDIU must await adjudication of the above claims. Accordingly, and giving the foregoing award of higher evaluation in the present case, the AOJ must re-consider the applicability of these benefits. The matters are REMANDED for the following action: 1. Take all required actions to obtain additional updated relevant VA treatment records and private treatment records as indicated. 2. Schedule the Veteran for a VA orthopedic examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed cervical, thoracic and lumbar spine disabilities to include arthritis, DDD, and lumbosacral strain. 3. For each spine disorder, the examiner must opine as to whether such is at least as likely as not related to military service, to include the inservice MVA or any other incident of active service. Concerning the intervening falls noted in private treatment records, such as that received on 11/25/2013 and 6/26/2013, the examiner is asked to opine whether any residuals from such injuries may be the result of aggravation of the pre-existing residuals of MVA by the post-service injury/injuries. 4. Schedule the Veteran for a gynecological and urinary examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed gynecological and urinary disabilities. 5. For each gynecological and urinary disorder, the examiner must opine as to whether such is at least as likely as not related to military service, to include inservice treatment for an ovarian cyst, repeated cysto-urethritis, urinary tract infections, and irregular menses. 6. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues, including the claim for TDIU. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel