Citation Nr: 19106975 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 14-18 208 DATE: January 29, 2019 ORDER Service connection for irritable bowel syndrome is granted. An initial rating of 40 percent for traumatic brain injury (TBI) prior to November 13, 2013 is granted. An initial rating in excess of 40 percent for TBI from November 13, 2013 to July 9, 2015 is denied. An initial rating in excess of 70 percent for TBI from July 9, 2015 forward is denied. A 10 percent rating for dizziness, associated with TBI, throughout the period on appeal is granted. FINDINGS OF FACT 1. The evidence and law establish that the Veteran’s irritable bowel syndrome is related to his service in Iraq and Kuwait. 2. The evidence demonstrates level 2 impairment in the TBI facets of communication and memory, attention, concentration and executive function prior to November 13, 2013. 3. The evidence shows multiple TBI facets with level 2 severity but none rising to level 3 severity during the period from November 13, 2013 to July 9, 2015. 4. The evidence does not show total impairment of any TBI facet that could warrant a rating in excess of 70 percent. 5. There is objective evidence of dizziness associated with TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for irritable bowel syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for an initial rating in excess of 10 percent for traumatic brain injury (TBI) prior to November 13, 2013 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8045. 3. The criteria for an initial rating in excess of 40 percent for TBI from November 13, 2013 to July 9, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8045. 4. The criteria for an initial rating in excess of 70 percent for TBI from July 9, 2015 forward have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8045. 5. The criteria for a separate, 10 percent rating for dizziness have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, 4.124a, DC 8045-6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 2001 to March 2002, December 2003 to March 2005, June 2005 to November 2005, January 2006 to May 22, 2007, September 2007 July 2008, and February 2009 to May 2010. He received multiple awards for his service including the Purple Heart. 1. Entitlement to service connection for irritable bowel syndrome Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Alternatively, a veteran who served in the Southwest Asia Theater during the Persian Gulf War and exhibits objective indications of a qualifying chronic disability may be service connected, so long as the objective symptoms occurred either during service in the Southwest Asia Theater or manifested to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A “qualifying chronic disability” means a chronic disability resulting from: an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). The Southwest Asia Theater is defined as Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Board concludes that service connection for irritable bowel syndrome (IBS) is warranted. First, the evidence shows a current disability. Current VA treatment records show diagnosis and treatment for IBS. The second element of service connection is also met. The Veteran complained of diarrhea multiple times in service including on Post-Deployment Health Assessments in July 2005 and April 2007. Additionally, the Veteran served two tours in Iraq and Kuwait during the Persian Gulf War from February 2004 to February 2005 and April 2009 to January 2010. On his 2005 Post-Deployment Health Assessment, he reported being exposed to burn pits. Finally, the nexus element is satisfied. In June 2013 and February 2014 statements, the Veteran reported being diagnosed with IBS upon returning from his first deployment in 2005. A VA treating provider in July 2005 noted diarrhea with a possible etiology of IBS. The Veteran wrote that he continued to experience symptoms. IBS, a functional gastrointestinal disorder, is specifically identified as a medically unexplained chronic multisymptom illness presumed to be associated with qualifying service in the Southwest Asia Theater. As such, the evidence and law establish that the Veteran’s IBS is related to his service in Iraq and Kuwait. As all three service-connection elements have been met, an award of service connection for IBS is warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran and his family are competent to give evidence of symptoms observable by their senses, and the Board finds them credible as their statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran contends that his TBI warrants higher ratings. The residual symptoms of the Veteran’s TBI have been evaluated under Diagnostic Codes 8045. See 38 C.F.R. § 4.124a. Diagnostic Code 8045 provides 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, DC 8045. 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. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” (Evaluation of TBI). 38 C.F.R. § 4.124a, DC 8045. The evaluation assigned based on the Evaluation of TBI table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. 38 C.F.R. § 4.124a, DC 8045. The Evaluation of TBI table contains 10 important facets of a traumatic brain injury 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 fifth level, the highest level of impairment, and labeled “total.” The evaluator 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. 38 C.F.R. § 4.124a, DC 8045. VA is to evaluate physical (including neurological) dysfunctions under an appropriate diagnostic code for that disability. 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. Several of the Veteran’s TBI-related disabilities have already been considered and rated separately. His headache disability was assigned an initial rating in a March 2014 rating decision, and in a September 2014 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating to 50 percent. Similarly, the Veteran is separately rated 50 percent disabled for sleep apnea with insomnia, 10 percent for tinnitus, and 70 percent for posttraumatic stress disorder (PTSD). The Veteran did not appeal the ratings or effective dates assigned for these disabilities. Therefore, the Board will not evaluate those disabilities in the course of this appeal. 2. Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) prior to November 13, 2013 Based on the evidence, the Board finds that a 40 percent rating is warranted for residuals of TBI prior to November 13, 2013. See 38 C.F.R. § 4.124a, DC 8045. In November 2011, the Veteran reported difficulty with concentration; difficulty remembering how to do things he had done many times before; difficulty remembering names, places, times, and dates; inability to think clearly; and inability to remember words from his vocabulary. Also in a November 2011 statement, S.L. wrote that the Veteran had memory problems, carried a pen and pad with him to help his memory, was unable to follow complex orders even with a written notice, was unable to concentrate and follow tasks, constantly had to be reminded of things, and made lists to help his memory. The November 2011 examiner indicated the Veteran complained of mild problems with memory loss, attention concentration, or executive function but without objective evidence on testing. The examiner observed normal judgment, routinely appropriate social interaction, full orientation at all times, normal motor activity, normal visual spatial orientation, no subjective symptoms, no neurobehavioral symptoms, the ability to communicate by spoken and written language, and normal consciousness. In November 2012, S.N. wrote that the Veteran had loss of energy, trouble with balance, difficulty concentrating, trouble with attention, forgetfulness, problems focusing, trouble with impulsiveness, trouble self-starting and multitasking, a hard time staying on topic, difficulty expressing thoughts in an organized manner, trouble planning and organizing a task, problems with remote memory, and difficulty making decisions. She explained that he felt tired all the time, repeated things, acted without thinking, took longer to comprehend what others said, took longer to read and understand written information, was slower to react when driving, and had trouble judging distance when driving. The Veteran reported that he could not remember things, had to write things down but then forgot that he wrote them down, lost focus at work, nothing registered when people talked to him at work, had trouble recalling the words he wanted, and forgot common things like names, addresses, and telephone numbers. He also wrote that on several occasions he had forgotten how to get to places he had traveled to his whole life. During VA treatment in August 2013, the Veteran reported problems recalling ordinary elements such as words, conversations, personal objects, and things to do. He indicated he had poor vocabulary, had to keep physical lists to remember tasks, had spatial difficulty with the inability to recall the location of places he knew before, and was unable to focus. The Veteran had average scores on the WAIS-IV test and with scholastic type skills. The HRB test revealed normal to borderline range of impairment of cognition with more language-based cognitive impairment. Delayed memory and visual memory both tested at the average range, but visual working memory was subpar at the low average range. Auditory and immediate memory scored at the border of average to low average. He had relatively good working memory, except for some prospective-type memory. The treating provider concluded that the Veteran’s overall marginal elements of cognitive difficulties on testing contrasted with his presentation. During October 2013 treatment, the Veteran complained of forgetfulness. The Veteran was presented with a list of symptoms and provided a corresponding level of severity. The results are as follows: feeling dizzy- mild; loss of balance- moderate; poor coordination, clumsiness- moderate; headache- severe; nausea- mild; vision problems- moderate; sensitivity to light- mild; hearing difficulty- severe; sensitivity to noise- moderate; numbness or tingling of body parts- mild; change in taste or smell- none; loss of or increase in appetite- very severe; poor concentration- very severe; forgetfulness- very severe; difficulty making decisions-very severe; slowed thinking, difficulty getting organized, staying on task- very severe; fatigue, loss of energy- very severe; sleep difficulty- severe; feeling anxious or tense- severe; feeling depressed or sad- severe; irritability- very severe; and poor frustration tolerance, feeling easily overwhelmed- very severe. For the TBI facet of memory, attention, concentration and executive function, lay statements discuss significant symptoms ranging from moderate to very severe, including memory problems, difficulty recalling words, trouble making decisions, and focus and concentration problems. The August 2013 testing revealed average to low average memory and cognitive functioning, which equates to mild impairment on objective testing, or a 2 in the TBI table. The examiner found the Veteran had normal judgment and the lay evidence does not refute this finding. Therefore, a 0 in the TBI table is appropriate. For social interactions, the lay evidence shows some difficulty interacting in a work environment but largely due to his concentration and other cognitive problems. The November 2011 examiner found routinely appropriate social interactions. Social interactions that is routinely appropriate results in a 0 on the TBI table. There is no evidence of loss of orientation; therefore, a 0 is appropriate for that facet in the TBI table. For motor activity, the Veteran endorsed moderate symptoms of poor coordination and clumsiness. However, the examiner found normal motor activity and the other lay statements do not suggest symptoms of impaired motor function. The Board finds the examination results highly probative as motor function is best analyzed with medical testing and expertise. As such, a 0 is appropriate in the TBI table for motor activity. For visual spatial orientation, the lay statements show problems following driving directions and judging distance when driving, but the examiner found normal visual spatial orientation. The Board finds the lay statements credible to evidence mild impairment of occasionally getting lost, which warrants a 1 in the TBI table. The examiner found no subjective symptoms that interfered with work, instrumental activities of daily living, or close relationships. Thus, a 0 is appropriate for subjective symptoms in the TBI table. The examiner found no neurobehavioral symptoms. More importantly, the Board notes that the Veteran’s symptoms of anxiety, irritability, and other psychologic symptoms are considered in the rating criteria for PTSD and may not be compensated again under the rating for TBI. As there are no neurobehavioral symptoms attributable to only TBI, a 0 is appropriate for this facet in the table. For communication, the examiner found the Veteran had the ability to communicate by spoken and written language. The lay statements, however, evidence difficulty understanding complex ideas or following complex instructions. Resolving doubt in the Veteran’s favor, the Board finds his communication symptoms warrant a 2 in the TBI table. Finally, there is no evidence of problems with consciousness. As the evidence demonstrates level 2 impairment in the facets of memory, attention, concentration and executive function and communication, a 40 percent rating is warranted for this period. In so finding, the Board notes that the symptoms of headaches, sleep impairment, tinnitus, and mental health are rated separately. Specifically, the July 2012 PTSD examination and October 2012 disability benefits questionnaire identified symptoms such as depressed mood, anxiety, irritability, and disturbances in mood and motivation as stemming from PTSD. Assignment of duplicate ratings for the same symptoms, known as pyramiding, is prohibited. 38 C.F.R. § 4.14. 3. Entitlement to an initial rating in excess of 40 percent for TBI from November 13, 2013 to July 9, 2015. The Board finds the evidence supports a continued rating of 40 percent but not a 70 or total rating for residuals of TBI from November 13, 2013 to July 9, 2015. See 38 C.F.R. § 4.124a, DC 8045. In the November 2013 VA examination, the examiner cited to the October 2013 evaluation and responses. The examiner then indicated the Veteran’s disability presented with complaints of mild memory loss, attention, concentration, or executive functions but without objective evidence on testing; mildly impaired judgment; frequently inappropriate social interaction; orientation to person, time, place, and situation at all times; normal motor activity; normal visual spatial orientation; three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or relationships; one or more neurobehavioral effects that frequently interfere with interactions but do not preclude them; ability to communicate by spoken and written language; and normal consciousness. The examiner noted the Veteran scored 30/30 on the Mini-Mental State Examination, which suggested no significant cognitive problems. The examiner listed subjective, physical, mental, or neurologic symptoms as sensory dysfunction; tinnitus; visual impairment; gait, coordination, and balance issues; headache; dizziness/vertigo; and mental disorder. The examiner then identified the Veteran’s residual symptoms as dizziness, imbalance, incoordination, headaches, nausea, vision problems, photophobia, hearing difficulty, phonophobia, appetite change, poor concentration, forgetfulness, difficulty making decisions, slowed thinking, fatigue, sleep problems, anxiety, depressed mood, irritability, and poor frustration tolerance. The examiner classified the Veteran’s condition as moderate to severe. Finally, the examiner noted that past TBI evaluations discussed numbness or tingling in the body, but the Veteran clarified that he only had paresthesias in his right hand as a residual of a fracture. On the same day, the Veteran had an examination for ear conditions. The examiner diagnosed dizziness and ataxia (loss of body control) but found normal ears, tympanic membrane, gait, and limb coordination. The examiner also found no evidence of vertigo on testing. Based on a review of the evidence, the maximum level designation for any TBI facet was a 2 corresponding to a 40 percent rating. For the first facet, complaints of mild memory loss, attention, concentration, or executive functions but without objective evidence on testing. The examiner did not cite to the positive evidence from the HRB or other tests conducted in August 2013 or repeat these tests. The Board finds no evidence to suggest that the Veteran’s TBI symptoms improved from August 2013 to November 2013 and concludes that a level 2 designation for this facet of TBI continues to be appropriate for this period. Nevertheless, the other objective findings, such as the full score on Mini-Mental Status Examination, preclude a finding of moderate impairment. The examiner found the Veteran’s judgment mildly impaired, which is consistent with lay statements. Such a finding results in a level 2 designation in the TBI table for that facet. The examiner noted the Veteran experienced frequently inappropriate social interaction; such corresponds to a level 2 designation in the TBI table. The Veteran had full orientation and normal motor activity for 0 designations in those facets of the TBI table. The examiner recorded normal visual spatial orientation, but as noted above, there is lay evidence of spatial difficulty in following directions and judging distance when driving. Therefore, a level 1 designation is appropriate for mildly impaired visual spatial orientation. The examiner noted three or more subjective symptoms with moderate interference, which corresponds to a level 2 in the TBI table. The examination revealed one or more neurobehavioral effects that frequently interference for a level 2 designation. The examiner found the Veteran was able to communicate. Lay statements evidenced some difficulty but the evidence, as a whole, does not demonstrate an inability to communicate for a 2 or greater designation. Finally, consciousness was normal. The highest level for any one facet was level 2. Therefore, a rating higher than 40 percent is not appropriate for this period. Again, the Board notes that the symptoms of headaches, sleep impairment, tinnitus, and mental health are rated separately. Symptoms such as anxiety, depressed mood, irritability, and poor frustration tolerance were associated with PTSD in the August 2014 examination. Similarly, the Veteran is service-connected for residuals of his right wrist fracture. Assignment of duplicate ratings for the same symptoms, known as pyramiding, is prohibited. 38 C.F.R. § 4.14. 4. Entitlement to an initial rating in excess of 70 percent for TBI from July 9, 2015 forward. The evidence does not show total impairment of any TBI facet that could warrant a rating in excess of 70 percent. See 38 C.F.R. § 4.124a, DC 8045. The July 2015 examiner also cited to the results of the October 2013 evaluation and August 2013 testing. On the ear examination, the examiner diagnosed dizziness and ataxia. The Veteran was alert and oriented with normal speech and affect. He complained of difficulty with concentration and memory, as well as headaches and poor sleep. He reported that his TBI symptoms were worse than at the time of the last examination. The examiner recorded normal gait, no vertigo, and normal limb coordination on testing. The examiner noted that ear or peripheral vestibular conditions would impact the Veteran’s ability to work because he must avoid exercise or use caution when performing activities where sudden unexpected dizziness, imbalance, or incoordination could harm himself or others. The examination shows the Veteran was employed full time. During the TBI-specific examination, the examiner indicated the residuals were complaints of mild memory loss, attention, concentration, or executive functions but without objective evidence on testing. The examiner noted that 30/30 on the Mini-Mental State Examination meant no significant cognitive problems. The examiner recorded mildly impaired judgment for complex or unfamiliar decisions and occasional inability to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. The examiner also recorded three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living or close relationships and one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. The Veteran’s social interaction was inappropriate most or all of the time. He was always oriented to person, time, place, and situation, had normal motor activity, normal visual spatial orientation, normal consciousness, and the ability to communicate by spoken and written language. The level 3 designation and 70 percent rating are the highest level of disability available for TBI other than total impairment. The evidence does not support a finding of total impairment in any of the facets of TBI. The Diagnostic Code does not provide total rating for social interaction, subjective symptoms, and neurobehavioral effects. The Veteran worked full time and functioned day to day. Regarding memory, attention, concentration, and executive functions, the Veteran continued to score 30/30 on the Mini-Mental Status Examination. Orientation, consciousness, and motor activity were normal. The examiner assessed judgment as mildly impaired, and the lay evidence does not suggest the Veteran experienced severe impairment to include problems with routine and familiar decision-making. While there is some lay evidence of visual spatial problems, the examiner found normal visual spatial orientation and there is no evidence to suggest such severe impairment as the inability to touch and name body parts or identify the position of two objects. There is no evidence that the Veteran has the complete inability to communicate. As such, a total rating is not appropriate. Finally, the Board notes the Veteran’s representative contends the examinations are internally inconsistent and staged ratings are not appropriate because the evidence reveals a significantly similar disability throughout. The Board finds that any alleged inconsistencies appear to come from the examiners’ documentation of symptoms reported by the Veteran and those observed during the examination and on objective testing. Thus, the examiners fulfilled their duties by providing accurate information on subjective and objective symptoms. Moreover, in assigning a rating, the Board considers all the evidence of record, not only the examinations. The Board agrees the staged ratings assigned by the AOJ for the first two periods were not consistent with the evidence of record and has increased the rating for the first period to 40 percent. Nevertheless, the Board finds that the staged rating for the final period is appropriate given that the Veteran reported worsened symptoms since the prior examination and the 2015 examiner recorded increased impairment of social interactions and neurobehavioral effects. 5. Entitlement to a separate award for dizziness associated with TBI (Continued on the next page)   As noted above, Diagnostic Code 8045 directs VA to rate physical dysfunctions of TBI separately under an appropriate diagnostic code. The evidence shows complaints of dizziness throughout the claims period with objective diagnoses of dizziness and ataxia in the November 2013 and July 2015 examinations for ear conditions. The lay evidence shows dizziness and imbalance. When discussing functional impairment, the 2013 and 2015 examiner identified the Veteran as suffering from peripheral vestibular disorder. Diagnostic Code 6204 addresses peripheral vestibular disorders and provides for a 10 percent rating for occasional dizziness supported by objective findings and a 30 percent rating for dizziness with occasional staggering. 38 C.F.R. 4.87. As noted, there is objective evidence of dizziness warranting a 10 percent rating. The Board finds that a 30 percent rating is not appropriate, because there is no evidence of dizziness and occasional staggering. The Veteran described his dizziness as mild in the October 2013 evaluation. While the evidence shows dizziness, balance issues, and incoordination, there is no evidence of staggering or falls. The November 2013 examiner noted gait, coordination, and balance conditions as subjective symptoms but on testing, found a normal gait. The July 2015 examiner also found normal gait. Tests for vertigo were normal during those examinations. Therefore, the evidence does not support a finding of balance problems severe enough to result in staggering. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.P. Armstrong