Citation Nr: 1827261 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 14-18 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Propriety of a reduction from a 70 percent rating to a 10 percent rating for service-connected traumatic brain injury (TBI) effective October 1, 2012. 2. Entitlement to an increased disability evaluation for the service-connected TBI. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from May 2007 to June 2008. He also service on inactive duty training (IADT) from January 2005 to June 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO, in pertinent part, reduced the rating for TBI from 70 percent to 10 percent disabling effective October 1, 2012. The Board recognizes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not contemplate a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). However, in the instant case, the Veteran submitted a claim for increased ratings for all his service-connected disabilities in December 2011. In an October 2012 rating decision, the RO reduced the service-connected TBI from 70 percent to 10 percent disabling. As will be discussed in further detail below, the Veteran was notified in the decision that the due process provisions of 38 C.F.R. § 3.105(e) did not apply to the reduction because it did not result in a reduction or discontinuance of compensation payments currently being made. The Veteran submitted a timely Notice of Disagreement (NOD). The Board finds that the October 2012 rating decision, which reduced the Veteran's disability evaluation, was also a denial of his petition to have the rating increased. As a result, the Veteran's appeal of that rating determination has brought before the Board the issue of the propriety of the reduction of the rating in addition to the Veteran's claim for entitlement to an increased disability rating for TBI. Thus, the issues on appeal have been recharacterized and bifurcated as they appear on the cover page of the instant decision. In February 2016, the Board determined that the reduction of the rating for TBI from 70 percent to 10 percent effective October 1, 2012, was proper. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Memorandum Decision, the Court reversed and vacated the February 2016 Board decision, including its determination to refer a claim for increased evaluation for TBI. The Court then remanded the matter for further proceedings consistent with the Memorandum Decision. The issue of increased evaluation for TBI is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2012 rating decision reduced the 70 percent schedular rating assigned for TBI to 10 percent, effective October 1, 2012. 2. At the time of the reduction, the 70 percent rating for the Veteran's TBI had been in effect since June 28, 2008, less than five years. 3. The RO's October 2012 rating decision was made without consideration of pertinent laws and regulations. CONCLUSION OF LAW The October 2012 rating decision reducing the service connected TBI from 70 percent to 10 percent disabling effective on October 1, 2012, is avoid ab initio. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8045 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION For ratings that had been in effect for 5 years or more, VA regulations contain certain protections in order to provide for the stabilization of assigned disability evaluations. 38 C.F.R. § 3.344 (a)-(c). In this case, the evaluations were in effect less than 5 years and these regulations are inapplicable here. Regardless of whether the five-year threshold is met, however, a VA rating reduction must be based upon review of the entire history of the veteran's disability, reconciling any contrary findings into a consistent picture. See 38 C.F.R. § 4.2. VA must then consider whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting such change are based upon thorough examinations. In any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required. See Brown, 5 Vet. App. at 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. In an April 2009 rating decision, the RO granted service connection for TBI and assigned a 70 percent evaluation, effective June 28, 2008. The RO, in pertinent part, also awarded service connection for PTSD, migraine type headaches, and visual field defect of the left eye. The Veteran filed a claim for increased evaluation in 2011. In an October 2012 rating decision, the RO reduced the 70 percent rating for TBI to 10 percent effective October 1, 2012. The same decision also increased the service-connected posttraumatic stress disorder from 30 percent to 70 percent effective December 14, 2011. The Veteran contends that such reduction was improper. For the reasons discussed below, the Board finds that the rating reduction was improper and that restoration of the 70 percent rating for TBI is warranted. Therefore, a discussion of whether VA complied with the procedural requirements set forth in 38 C.F.R. § 3.105 (e) is unnecessary. The criteria for evaluating traumatic brain injury (TBI) are set forth in Diagnostic Code 8045. That Diagnostic Code provides rating criteria for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017). 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 a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, 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 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. 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 diagnostic code: 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 a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 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. Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms. As is relevant here, if the highest level of evaluation for any facet is "3," then the appropriate disability rating is 70 percent. If the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent. A 10 percent evaluation is warranted when the highest level of evaluation for any facet is "1." Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is "0." 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (1). 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (2). 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (3). The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (4). The table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations 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; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired 0 May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations 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; and (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. Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Veteran's grant of service connection of a 70 percent rating for TBI was based upon December 2008 and February 2009 VA examinations. The evaluation assigned was based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury. The Veteran was assigned a level "3" for memory, attention, and concentration, indicating that the February 2009 examiner found evidence such as objective evidence of testing of moderate impairment of memory, attention, concentration or executive functions resulting in moderate functional impairment. The examiner assigned levels of 0 for the judgement facet, the social interaction facet, the orientation facet, the motor activity facet, the visual spatial orientation facet, the neurobehavioral effects facet and the communication facet. The subjective symptoms facet was assigned a level "1" for three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family or other close relationships. In an October 2012 rating decision the RO reduced the Veteran's rating for his TBI from 70 percent to 10 percent. The RO based this rating reduction on a February 2012 VA examination finding that a lower severity of level "1" had to be assigned for the memory, attention, concentration, executive functions facet, indicating that the examiner found evidence such as mild symptomatology but without objective evidence on testing. The RO found that the judgment, orientation, motor, visual, and communication facets to be at 0. The social interaction and subjection symptoms facets were assigned a level "1" as well. (The Board notes that the Veteran is separately rated for manifestations related to headaches. See 38 C.F.R. § 4.14.) The TBI examiner stated that there had been no change in diagnosis. On February 2012 VA psychiatric examination, memory loss was noted to be a symptom of the Veteran's service-connected psychiatric disability, and the examiner was not able to differentiate between symptoms attributable to PTSD and those attributable to TBI. Consequently, the RO deferred a decision on the matter of the appropriate ratings for PTSD/psychiatric disability and TBI and requested new VA examinations. See April 2012 rating decision and July 2012 examination request. On September 2012 VA examination, the examiner concluded that he could not differentiate between PTSD and TBI with respect to the Veteran's symptoms of memory and concentration impairment, and that his PTSD symptoms were consistent with a 70 percent rating (for occupational and social impairment with deficiencies in most areas). With respect to the severity of the memory symptoms, however attributed, the examiner characterized the memory loss as mild, but including impairment of both short- and long-term memory. The Board notes that an August 2012 VA psychiatric examination was not responsive to the questions posed. The Veteran was afforded an additional VA examination in March 2013 after he requested a new examination indicating the prior examination was inadequate. Based on this evaluation the Veteran was assigned a level "2" for memory, attention, and concentration, indicating that the examiner found evidence such as objective evidence of testing of mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment. The examiner assigned levels of 0 for the judgement facet, the social interaction facet, the orientation facet, the motor activity facet, and the communication facet. The visual spatial orientation facet, the subjective symptoms facet, and the neurobehavioral effects facet were assigned a level "1." The examiner found that the Veteran's residual conditions attributable to his TBI impacted his ability to work. The examiner noted the Veteran had short term memory loss, attention, and concentration difficulties. The Veteran also forgot what he read for school and had to read the same materials multiple times to remember. A private neuropsychological test dated in July 2014 shows the Veteran reported that his memory problems seemed to be worsening. He lost information very quickly. He forgot things he said to his wife, he had difficulty reading books and had to reread information, and his reaction time was slower. He also stated he did not think before he spoke. The provider noted that the results on the test were mixed. Index of processing speed went from mild in 2010 to moderately impaired in 2014. On a list learning task he recalled fewer words on longer delay. He continued to perform in the impaired range on his memory test as compared to 2010. Performance on a card sorting test was average in 2010 and severely impaired in 2014. The October 2012 reduction decision relied solely on the February 2012 VA examination report. The April 2014 statement of the case (SOC) however found that the Veteran's symptoms associated with his TBI and his PTSD were evaluated using similar rating criteria and the provisions of 38 C.F.R. § 4.14 precluded evaluating the same disability under various diagnoses. The RO then indicated that a new examination was ordered to differentiate the symptoms, but since the additional VA examiner could not discern if concentration and memory were symptoms associated with his TBI or PTSD, the RO found that his findings were consistent with a 10 percent evaluation based on the highest level of severity of "1." At this juncture, the Board would note that in the October 2012 rating decision, the RO did not elect to attribute the memory impairment symptom to the Veteran's PTSD when awarding the increased 70 percent rating. There was also no indication by the RO that it intended to reallocate the memory loss symptoms to the PTSD rating to avoid pyramiding. Though cited as evidence considered, the RO never discussed the March 2013 VA examination in the SOC, which showed the highest level of severity was actually a "2" for memory, attention, concentration, and executive functions, which would actually warrant a 40 percent rating. That aside, and more importantly, the RO failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life. Pursuant to the Court's holdings in Faust and Brown, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. at 350; see also Brown v. Brown, 5 Vet. App. at 421. As such, the RO's failure to make such a determination in this case renders the reduction improper. The law is clear that certain procedures, set forth in Brown and Faust, must be followed when a disability rating is reduced. The RO's failure to comply with the requirements renders the reduction from 70 percent to 10 percent void ab initio. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see also Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-82 (1992). In Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991), the Court explained that where a rating reduction was made without observance of law, the erroneous reduction must be vacated and the prior rating restored. Such action is required in the instant case. Accordingly, the previously assigned 70 percent rating for the service-connected TBI is restored as of October 1, 2012. The appeal is allowed to that extent. ORDER Restoration of a 70 percent evaluation for TBI is granted, subject to controlling regulations governing payment of monetary awards. REMAND The restoration of the 70 percent evaluation for TBI awarded in the instant decision may affect the period of evaluation for determining whether a higher rating is warranted for that disability. Once the RO has effectuated the restoration and conducted any further necessary development, the claim for increase should be adjudicated. Any Board action on the increased disability evaluation claim at this juncture would be premature. Hence, a remand of this matter is warranted. Accordingly, the case is REMANDED for the following action: After restoration of the 70 percent evaluation for TBI, and any other development necessary, the claim for increased evaluation for TBI must be adjudicated. If upon completion of the above action, the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs