Citation Nr: 18161220 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 14-34 384 DATE: December 31, 2018 REMANDED Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had qualifying service from April 1991 to April 2011. In a January 2012 Rating Decision, the agency of original jurisdiction (AOJ): (a) granted entitlement to service connection for TBI at 0 percent under Diagnostic Code (DC) 8045; and (b) assigned a separate rating for associated cognitive disorder not otherwise specified (NOS) (claimed as memory loss and emotional changes) at 0 percent under DC 9304. 38 C.F.R. §§ 4.124a, DC 8045, 4.130, DC 9304 (2017). In a July 2017 Rating Decision, the AOJ: (a) increased the initial TBI rating from 0 percent to 10 percent under DC 8045; (b) assigned a separate rating for associated migraine headaches at 30 percent under DC 8100; and (c) continued the rating for cognitive disorder NOS at 0 percent under DC 9304. 38 C.F.R. §§ 4.124a, DCs 8045 and 8100, 4.130, DC 9304 (2017). Because the maximum benefit sought has not yet been awarded, the appeal remains properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993); November 2018 Brief (requested maximum benefit, including extraschedular consideration). 1. TBI Residuals The Veteran generally contends that the manifestations of his service-connected TBI have been more severe than contemplated by the current rating at 10 percent. See August 2012 Notice of Disagreement; September 2014 VA Form 9; November 2018 Brief. The Veteran was afforded pertinent VA examinations in March 2011 by Dr. SE, May 2011 by Dr. LM, and May 2017 by Drs. LFD and TNL. In March 2011, an examiner diagnosed, in pertinent part, status-post TBI and noted the following symptoms: headaches; mood swings; slowness of thought; problems with attention, concentration, and reading (such as having to read lines over twice); mild memory problem (difficulty remembering such that the Veteran must write things down); hypersensitivity to light; irritability; restlessness and inability to sit still; trouble sleeping (wakes up feeling irritable and moody); dizziness; difficulty finding the right words to express himself; difficulty articulating words; difficulty telling a story or explaining an idea; and shorter temper. The examiner assessed no: confusion; difficulty understanding directions; anxiety; depression; fatigue; vision problems; hearing problems or tinnitus; taste or smell problems; sensitivity to sound; heat intolerance; abnormal sweating; malaise; pain; infections; language problems; or endocrine complications. Upon testing, the examiner found: coordination and motor function within normal limits; alert and oriented to person, place, and time; behavior normal; affect and mood appropriate; command comprehension normal; memory intact; no signs of anxiety, hallucinations, or delusions; capable of managing finances. The examiner opined that the symptoms were generally worsening in frequency, but resulted in no overall functional impairment. In May 2011, an examiner diagnosed, in pertinent part, cognitive disorder NOS and noted the following symptoms: moderately poor memory (needs to write things down, forgets names, forgets directions, forgets recent events); moderate temper issues; easily irritated; strained family relationships; becomes emotional during certain activities (such as watching movies); and poor concentration. The examiner assessed no problems with: orientation; appearance or hygiene; behavior; eye contact; affect or mood; communication or speech; panic attacks; suspiciousness, delusions, hallucinations, or obsessive-compulsive behaviour; thought processes; slowness of thought or confusion; judgment; abstract thinking; or suicidal or homicidal ideation. Upon testing through the Folstein Mini Mental Status Examination (FMMSE), the examiner found: (a) no objective evidence of problems with memory, attention, concentration, or executive functions; (b) normal judgment; (c) routinely appropriate social interaction; (d) no orientation impairment; (e) normal motor activity; (f) normal visual-spatial orientation; (g) no subjective symptoms reported; (h) one neurobehavioral effect (increased tendency to become angry) that does not interfere with workplace or social interaction; (i) no communication problems; and (j) normal consciousness. The examiner opined that the Veteran did not have difficulty performing activities of daily living, was able to establish and maintain effective work and social relationships, and did not have psychiatric interference with social or occupational functioning. In May 2017, an examiner performed the mental disorders examination and noted cognitive disorder NOS symptoms of: chronic sleep impairment; reported memory loss (resulting in spousal fights, irritability, and decreased socializing); fair insight and judgment; and fair impulse control. However, the examiner noted that the Veteran’s memory was “excellent” during the examination (able to do simple math and recount the names of medications and other details with ease, although he was often hesitant when answering) and that the sleep difficulty was attributable to his history of sleep apnea. The examiner assessed no problems with: depression; mania; lethality; psychosis; panic; suicide attempts; orientation; dress or hygiene; eye contact; psychomotor agitation or retardation; speech; thought; affect; emotional blunting; hallucinations; delusions; or paranoia. The examiner opined that the memory loss negatively impacted personal relationships, but that the symptoms were not severe enough to interfere with occupational effectiveness or preclude the ability to work in any capacity. In May 2017, an examiner performed both the TBI and headaches examinations. The headache examination revealed: headache pain (pulsating or throbbing head pain on both sides of the head); non-headache symptoms (nausea, sensitivity to light, sensitivity to sound); duration typically less than one day; characteristic prostrating attacks once every month, but not productive of severe economic inadaptability. The examiner opined that the Veteran would be unable to work around 2 to 3 times per week during bad headaches. The TBI examination revealed the Veteran’s report of a significant decline, over the past several years, in his memory (needs to write nearly everything down, cannot do multi-stage tasks without difficulty, frequently misplaces things, gets lost driving), headaches, mood, and ability to concentrate and stay focused. The examiner diagnosed TBI with residuals of headaches, memory loss, mood swings, and mild cognitive impairment. The examiner found: (a) complaints of mild memory loss (as noted above); (b) normal judgment; (c) occasionally inappropriate social interaction (often wants to be left alone); (d) no orientation impairment; (e) normal motor activity; (f) normal visual-spatial orientation; (g) three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or relationships (headaches with hypersensitivity to sound and light, short temper, marital discord, frequent forgetfulness); (h) three neurobehavioral effects that occasionally interfere with workplace or social interaction, but do not preclude them (headaches with hypersensitivity to sound and light, short temper, frequent forgetfulness); (i) no communication problems; and (j) normal consciousness. The examiner opined that the Veteran’s poor memory, problems following directions, and easy frustration would make it difficult for him to function in jobs requiring prolonged concentration and focus, complex or multi-stage tasks, or intact memory. Crucially, the examination instructions state that repeat neuropsychological testing is not required if the previous testing accurately reflects the Veteran’s current functional status; however, despite the increased functional loss since March 2011, this examiner seemed to rely on the March 2011 FMMSE, rather than performing new neuropsychological testing. In the November 2018 Brief, the representative contended that: (a) the examiner’s May 2017 assessment is no more probative than the Veteran’s lay assertions because the examiner was a family medicine provider who did not specialize in a relevant field (such as neurosurgery, neurology, psychiatry, or neurological and polytrauma disorders); and (b) the Veteran’s condition had worsened such that the May 2017 examinations were now too old to adequately evaluate the state of the condition. However, the Board finds the May 2017 examiner to be a competent provider based on the presumption of regularity and the absence of evidence to the contrary (the representative did not present evidence that a specialist is necessary to provide a competent opinion in this case). Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (the competence of VA examiners is to be presumed, based on the presumption of regularity, in the absence of evidence to the contrary). Nevertheless, the Board must remand to obtain new neuropsychological testing due to contentions of worsening supported by objective evidence (as previously discussed, the May 2017 examiner assessed increased functional loss since the 2011 examinations, but failed to perform new neuropsychological testing). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Current testing is necessary to evaluate TBI under DC 8035. 38 C.F.R. §§ 4.124a, DC 8045 (requires the Board to determine the severity of memory, attention, concentration, and executive functions impairment based on objective evidence on testing). The matter is REMANDED for the following action: 1. Examine the current severity of the service-connected TBI and conduct new neuropsychological testing (examiner may not rely on the May 2011 FMMSE). 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel