Citation Nr: 1807297 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 17-26 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Restoration of a 70 percent disability rating for traumatic brain injury (TBI), reduced by the Regional Office (RO) to 0 percent. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active duty service from August to December of 1975 and from February to July of 1991. She also had periods of active duty for training in the Reserves. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In August 2015, the RO proposed to reduce the disability rating for TBI from 70 percent to 0 percent. In an April 2016 rating decision, the RO reduced the rating to 0 percent, effective July 1, 2016. In October 2015 and October 2016 the Veteran had hearings regarding the TBI rating reduction before RO officials. Transcripts of those hearings are of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT After the assignment, effective in May 2011, of a 70 percent rating for the Veteran's TBI residuals separate from headaches, she experienced, under ordinary conditions of life and post-retirement volunteer activity, sustained and sustainable improvement in non-headache effects attributable to TBI, such that there was no, and likely will not be any, TBI-related impairment other than headaches. CONCLUSION OF LAW Restoration of a 70 percent disability rating for TBI is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.344, 4.1 4.2, 4.10, 4.13, 4.124a, Diagnostic Code 8045 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). The RO provided the Veteran notice in letters issued in 2002 through 2014. In those letters, the RO notified her what information was needed to substantiate claims for service connection. The letters also addressed how VA assigns disability ratings and effective dates. In an April 2017 statement of the case (SOC), the RO notified her of the regulations regarding reduction of disability ratings. The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issue on appeal. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which she might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process, and she has done so. Restoration of TBI Rating During a period of reserve service active duty for training in August 1977, the Veteran sustained head injury when she hit her head on an x-ray machine. After the injury she began to experience headaches. In December 1998 she sought service connection for residuals of the head injury and for headaches. In a July 2001 rating decision the RO granted service connection, effective in December 1998, for post traumatic headaches, residual to traumatic head injury. The RO evaluated that disability under 38 C.F.R. § 4.124a, Diagnostic Code 8100, as analogous to migraine headaches. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. The Veteran subsequently sought an increased rating for headaches residual to head injury. In a June 2013 rating decision, the RO reversed an earlier rating reduction and restored a 50 percent rating for post traumatic headaches. The RO established separate service connection for the headaches and for residuals of traumatic head injury. The RO made the separate service connection for residuals of traumatic head injury effective May 11, 2011. The RO evaluated the head injury residuals under 38 C.F.R. § 4.124a, Diagnostic Code 8045, for residuals of TBI. The RO assigned a 70 percent rating. In October 2014 the RO proposed to reduce the rating for TBI from 70 percent to 10 percent. In November 2014 the Veteran expressed disagreement with the proposed reduction. In August 2015, the RO proposed to reduce the disability rating for TBI from 70 percent to 0 percent. In an April 2016 rating decision, the RO reduced the rating to 0 percent, effective July 1, 2016. The Veteran appealed the reduction of the rating. She essentially contends that the TBI has residual effects, including memory impairment, that have continued and have not diminished over the relevant period. The United States Court of Appeals for Veterans Claims (Court) has noted that a claim stemming from a rating reduction action is a claim for restoration of the prior rating, not a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). There are required procedures when a rating is reduced. Specifically, when reduction of a rating is considered warranted, and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e) (2017). When the RO proposed, in August 2015, to reduce the rating for the Veteran's TBI from 70 percent to 0 percent, the RO mailed a notice to her latest address of record. The notice informed her of the procedures for the presentation of evidence, the right to a hearing, and representation options. The Veteran requested and had a hearing regarding the proposed reduction. The RO considered the evidence and proceeded with reduction of the rating. The effective date of the reduction was more than 60 days after the notice of reduction. The Board finds that, in reducing the rating, the RO complied with the procedures outlined under 38 C.F.R. § 3.105(e). The Board will now address whether the rating reduction was proper. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Court has held that several general regulations apply to all rating reduction cases, regardless of how long the rating has been in effect. Specifically, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown, supra, at 421. Thus, in any rating reduction case, it must be determined not only that an improvement in a disability actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. A claim as to whether a rating reduction was proper must be resolved in the veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, supra, at 421. There are more stringent evidentiary requirements for reducing ratings that have been at the same level for more than five years. Service connection for the Veteran's TBI residuals as separate from her headaches, and the separate 70 percent rating for those TBI residuals, was effective May 11, 2011. That 70 percent rating was in effect for more than five years in July 1, 2016, the effective date of the reduction to 0 percent. Therefore the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability ratings apply to this case. Under 38 C.F.R. § 3.344(a), if a rating has been in effect for more than five years, then rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest will not be reduced on examinations reflecting the results of bed rest. Moreover, even when material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. If doubt remains as to whether there is improvement that will be maintained, the rating agency will continue the rating in effect pending reexamination later. 38 C.F.R. § 3.344(b). In evaluating residuals of TBI, it is noted that there are three main areas of dysfunction that may result from TBI and may 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. VA is to 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, 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 TBI Not Otherwise Classified" table. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The RO has evaluated the Veteran's headaches separately under Diagnostic Code 8100, for migraines. The rating for TBI thus is based on manifestations other than headaches. 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, 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. VA is to assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," VA is to 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. VA is to, for example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 38 C.F.R. § 4.124a, Diagnostic Code 8045. One of the facets of cognitive impairment is memory, attention, concentration, and executive function. The criteria for impairment levels 0 through 3 and total under that facet are as follows: 0: No complaints of impairment of memory, attention, concentration, or executive functions. 1: A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. 2: Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. 3: Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Total: Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. 38 C.F.R. § 4.124a, Diagnostic Code 8045. For the facet of subjective symptoms, the table provides as follows: 0: Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. 1: Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. 2: Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. 38 C.F.R. § 4.124a, Diagnostic Code 8045. In August 1977 the Veteran received treatment for a head injury sustained three days earlier, during reserve service. She reported that while she was assisting in caring for with a patient, she bumped her head on x-ray equipment. She stated that she became dazed, but not unconscious. She reported that since then she had experienced headache and blurred vision, without vertigo or nausea. There was no meningioma. A treating clinician found that she looked well. The findings on neurological examination were within normal limits. The clinician's assessment was concussion that was resolving. Headaches continued and worsened, and she was admitted to a hospital for evaluation. She was discharged two days later with a diagnosis of post-traumatic headaches. Subsequent service treatment records from August 1978 and several occasions in the 1980s reflect headaches and migraine headaches. Most of the service treatment records, which are from the 1970s, 1980s, and early 1990s, are silent as to any memory or other cognitive issues. In a December 1988 service medical history, the Veteran marked yes for history of loss of memory or amnesia. On examination at that time, the examiner marked normal for the Veteran's neurological and psychiatric conditions. In a June 1991 examination, the examiner stated that there were no sequelae of head injury. In a September 1992 history, the Veteran marked no for history of loss of memory or amnesia. Records of VA treatment of the Veteran from 2000 forward reflect her reports of chronic headaches and widespread body pain. She indicated that she had worked as a telephone operator, that she retired from that work in 1999, and that after retirement she spent time volunteering. On VA examination in January 2001 the Veteran reported that after the 1977 head injury, through the present, she continued to have headaches. On VA examination in January 2006 she reported a history of headaches since 1977, with daily constant headaches presently. On VA neurological examination in May 2007 she reported ongoing headaches. The examiner noted that she was oriented and had normal speech and 3/3 recall. In neurology treatment in June 2007, recall was 3/3. A VA neurological examination in December 2008 addressed her headaches, and was silent as to cognitive function. In March 2009, the Veteran requested service connection for TBI. On VA TBI examination in June 2009, she reported having sustained TBI in the late 1970s when she hit her head on an x-ray machine. She related that the injury was followed by headaches that continued through the present. She stated that she continued in reserve service until 1995, and that she held civilian employment until age 64, when she retired. On the 2009 examination she did not report any memory impairment or other cognitive problems due to her TBI. The examiner found that her cognitive functioning was grossly normal. In September 2009, the examiner provided an addendum to the report of the TBI examination. The examiner indicated that the Veteran made no complaints, and the examiner found no evidence, of impairment of memory, attention, concentration, or executive functions. No other cognitive impairment related to TBI was found. In notes of VA primary treatment of the Veteran in May 2010, a list of problems included migraines, but did not include any cognitive problems. In neurology treatment in October 2010, the Veteran reported headaches but did not report any cognitive problems. In December 2010, VA physician D. F., M.D., wrote that the Veteran had been his primary care patient for several years. Dr. F. stated that the Veteran had a variety of medical problems, including severe headaches, which the Veteran related to a TBI. On VA neurological examination in May 2011, the Veteran described the characteristics, effects, and frequency of her headaches. On memory testing the score was 16 out of 30. The examining neurologist stated that she had moderate to severe memory impairment. The examiner also found decreased attention, difficulty concentrating, and difficulty with executive functions. The examiner assigned an impairment level of 3 for memory, attention, concentration, and executive functions. On VA TBI examination in April 2014, the examiner found that there was complaint of mild loss of memory, attention, concentration, or executive functions, but no objective evidence on testing. That finding is consistent with an impairment level of 1 for memory, attention, concentration, and executive functions. The examiner characterized the Veteran's 1977 TBI as mild. The examiner found that the only residual from that TBI was ongoing headaches. She opined that there was no objective documentation that any cognitive complaint is due to the mild TBI many years earlier. She stated that the development of cognitive issues years after the injury does not follow the expected course over time for residuals of TBI. She further noted the Veteran's age, then 78, and found that her other medical conditions more likely than not accounted for any cognitive complaint. On VA TBI examination in April 2015, the Veteran reported ongoing headaches. She complained of trouble with memory of the past few months, worse during allergy seasons. The examining neurologist found that there was complaint of mild loss of memory, attention, concentration, or executive functions, but no objective evidence on testing; again consistent with an impairment level of 1 for memory, attention, concentration, and executive functions. The examiner expressed the opinion that it is less likely than not that the attention and memory difficulties are due to her mild TBI. She explained that those issues had onset more than 30 years after the TBI. She stated that attention difficulties that occur with mild TBI tend to improve within months. In the October 2015 RO hearing, the Veteran reported having difficulty with memory, such that she had to write down information such as appointments. She stated that at the most recent VA examination she minimized her memory problems when describing them, because of reluctance to admit that her memory was worsening. On VA TBI examination in February 2016, the Veteran reported trouble with memory for the past year, with that trouble slowly worsening. The examining neurologist again found that there was complaint of mild loss of memory, attention, concentration, or executive functions, but no objective evidence on testing; again consistent with an impairment level of 1 for memory, attention, concentration, and executive functions. The examiner expressed the opinion that it is less likely than not that the attention and memory difficulties are due to her mild TBI. She again explained that those issues had onset many years after the TBI, and that attention difficulties that occur with mild TBI tend to improve within months. In the October 2016 RO hearing, the Veteran stated that her memory was not good, and that it used to be better. She indicated that she needed to write everything on a calendar. She asserted that the memory problems were due to the head injury. She expressed the belief that her memory problems were not due to her age. She indicated that for many years she had compensated for memory impairment by writing things down on a calendar. She also reported having diminishing ability to spell words, and having nervousness in interactions with others. She asserted that the effects of her TBI had not decreased. An April 2017 statement of the case (SOC) reflects that the RO considered and applied the provisions of 38 C.F.R. § 3.344(a). The 70 percent rating that was in effect for the Veteran's TBI before the rating reduction was based on the finding, in the May 2011 VA examination, of an impairment level of 3 for memory, attention, concentration, and executive functions. The physicians who performed TBI examinations in 2014, 2015, and 2016 concluded that any impairment of her memory, attention, concentration, and executive functions is not residual to or otherwise related to her TBI. Those examinations were as full and complete as the May 2011 examination. The 2014, 2015, and 2016 examiners explained their conclusions based on the medical records and history. Their conclusions carry significant persuasive weight. In the 2016 RO hearing, the Veteran stated that her memory problems began years earlier. Considering the absence of complaints of such problems in medical records, and the findings of good recall on screenings as late as 2007, the greater persuasive weight of the evidence is against a long history of memory and other cognitive problems. As the evidence persuasively shows that any memory or other cognitive impairment is not residual to her TBI, her other-than-headache disability due to TBI did improve relative to the 2011 findings that were the basis of the 70 percent rating. The Veteran retired from work before the period affected by the rating reduction. She reported that since retirement she has maintained activities of daily living and had engaged in volunteer work. Thus the improvement occurred under ordinary conditions of life and work or worklike activity. From the July 1, 2016, date of the reduction, the effects other than headaches of the TBI have not met the criteria for a rating higher than 0 percent. Therefore, the improvement warranted the reduction from 70 percent to 0 percent. The Board denies restoration of the 70 percent rating. ORDER Entitlement to restoration of a 70 percent rating for TBI is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs