Citation Nr: 19109331 Decision Date: 02/06/19 Archive Date: 02/06/19 DOCKET NO. 10-49 258 DATE: February 6, 2019 ORDER A separate 30 percent, but not higher, disability rating for headaches as a residual of a traumatic brain injury (TBI) is granted effective March 31, 2009, but not earlier, subject to the laws and regulations governing the payment of monetary benefits. A disability rating in excess of 30 percent for headaches as a residual of TBI since October 31, 2016, is denied. REMANDED Entitlement to increased ratings for amnestic and cognitive disorders as residuals of TBI, rated as 40 percent disabling since March 31, 2009, and 10 percent disabling prior to March 31, 2009, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED The issue of reimbursement for travel expenses to a VA medical center was raised in a February 2018 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran filed his claim for an increased rating on March 31, 2009. 2. The evidence is in equipoise as to whether from March 31, 2009, to October 30, 2016, the headache disorder was manifested by characteristic prostrating attacks occurring on average once a month over the last several months. 3. The weight of evidence is against a finding that since March 31, 2009, the headache disorder has been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. The weight of evidence is against a finding that the headache disorder increased in severity during the one-year period prior to the claim on March 31, 2009. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a separate 30 percent disability rating for headaches as a residual of TBI from March 31, 2009, to October 30, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Code 8100 (2018). 2. The criteria for a disability rating in excess of 30 percent for headaches as a residual of TBI since October 31, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Code 8100. 3. The criteria for a separate compensable rating for headaches as a residual of TBI prior to March 31, 2009, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the August 2009 rating decision, the RO assigned a 40 percent disability rating for amnestic and cognitive disorders as residuals of TBI effective March 31, 2009, the date of the claim. Prior to March 31, 2009, the service-connected residuals of TBI were rated as 10 percent disabling. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Thus, the issue involving the psychiatric disorder includes whether a rating in excess of 10 percent prior to March 31, 2009, is warranted. In June 2016, the Board remanded the issues for further development. In an April 2018 rating decision, the RO assigned a separate 30 percent disability rating for headaches effective October 31, 2016. In a June 2018 written brief presentation, the representative argued that there is a clear and unmistakable error in the April 2018 rating decision assigning an effective date of October 13, 2016, for the 30 percent disability rating for headaches. The Board notes that in a June 1976 rating decision, a RO granted service connection for headaches due to head trauma. Therefore, the headache disorder is part of the disability that was the subject of the increased rating issue remanded by the Board in June 2016. The issues of entitlement to a disability rating in excess of 30 percent for headaches since October 31, 2016, and entitlement to a separate compensable rating for headaches prior to October 31, 2016, are before the Board at this time. Furthermore, the Board does not have to address whether there is a clear and unmistakable error in the April 2018 rating decision because the issues addressed in that rating decision regarding the headaches are part of the issues on appeal. Increased Rating VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to a separate compensable rating for headaches prior to October 31, 2016 Governing law and regulations The Veteran filed his claim for an increased rating for headaches due to brain trauma on March 31, 2009. Effective October 23, 2008, VA amended rating criteria for evaluating TBI. 73 Fed. Reg. 54,693(2008). Therefore, the Board will consider the Veteran’s claim under the old criteria from April 1, 2008, to October 22, 2008, and under the new criteria from October 23, 2008. Hart, 21 Vet. App. at 509. Under the old criteria, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007). Purely subjective complaints such as headaches, dizziness, insomnia, etc., which are recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Id. Under the current criteria, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2018). Physical (including neurological) dysfunction is to be evaluated 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The April 2018 rating decision reflects that the RO has rated headaches as a purely neurological disorder under Diagnostic Code 8100 effective October 31, 2016, and as a separate disability from the other residuals of TBI. Therefore, the Board will consider whether a rating in excess of 30 percent for headaches is warranted and whether a separate compensable rating under Diagnostic Code 8100 is warranted for the headaches as a purely neurological residual disability for the entire period of the appeal prior to October 31, 2016. Under Diagnostic Code 8100, a 50 percent rating is warranted for migraine headaches manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation requires symptomatology manifested by characteristic prostrating attacks occurring on an average of once per month over the last several months. A 10 percent disability rating is warranted for symptomatology manifested by characteristic prostrating attacks occurring on an average of once every two months over the last several months. A zero percent disability rating is warranted for symptomatology manifested by characteristic prostrating attacks occurring less frequently than once every two months over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating.” The Board additionally observes that the United States Court of Appeals for Veterans Claims (the Court) has not undertaken to define “prostrating.” Cf. Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack. According to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” The rating criteria also do not define “inadaptability.” However, the Court noted that nothing in Diagnostic Code 8100 required the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). Analysis In addition to a diagnosis of post-concussive or post-traumatic headaches, VA treatment records show a diagnosis of tension headaches. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). There is conflicting evidence on the severity of the headache disorder prior to October 31, 2016. A July 2009 VA examination report reveals that the Veteran reported that he had headaches twice a day that lasted for 30 minutes. The Veteran reported that these headaches occur as frequently as once every two weeks. The Veteran described the overall functional impairment as being an inability to continue the current task due to excruciating pain. The examiner noted that the effects of the headaches on the Veteran’s usual occupation is blurred vision, difficulty sleeping, and decreased cognition. The examiner also noted that the effects on his daily activities are blurred vision and difficulty sleeping. A December 2010 VA examination report shows that the Veteran described his headaches as being squeezing sensation. He denied nausea, photophobia, or phonophobia. He reported that he can work when he has a headache but that he needs to take medication. He described the pain as being an eight on a scale of one to ten. He noted that he has headaches on average three times a month and that the headaches last for 30 minutes. The examiner diagnosed post-concussive headaches. An October 2011 private treatment record reflects that the Veteran reported a long history of headaches since his in-service injury with the headaches becoming more frequent and intense over the past few weeks. In November 2011, the Veteran reported having a rare brief headache that is not problematic. In a January 2012 statement, the Veteran’s spouse, a registered nurse, reported that his headaches had worsened since the brain tumor surgery in October 2011. VA treatment records reflect that the Veteran denied having headaches in July 2012 and February 2013. In May 2013, it was noted that the Veteran had not had headaches since October 2011. An August 2013 record reveals that the Veteran continued to have no problems with tension headaches since the brain tumor was resected. The impression was resolved tension headaches. A November 2015 record shows no complaints of headaches. An October 31, 2016, VA examination report reflects a diagnosis of post-traumatic headaches. The examiner did not diagnose tension headaches. The Veteran did not have characteristic prostrating attacks of migraine headache pain. The examiner noted that the Veteran had prostrating attacks of non-migraine headache pain once a month over the past several months. The examiner indicated that the Veteran had very frequent prostrating and prolonged attacks of non-migraine headache pain. The examiner noted that the headaches impacted the ability to work because he was unable to work and must rest when severe headaches occur. The examiner noted that the treatment plan did not include taking medication for the headaches. In an October 2017 addendum to the October 2016 VA examination report, a VA neurologist noted that the Veteran had a severe non-migraine type headache once a month that responded to rest and lasted less than a day in duration. The neurologist stated that the Veteran does not take medication for his headaches. The examiner stated that the impact of the headaches over the course of a year on his ability to work would be limited because his headache would not always occur during a workday and because his headache would resolve with rest. The neurologist stated that there are no restrictions on job activities. Though VA treatment records from 2012 to 2015 reflect no complaints of headaches since the resection of the brain tumor in October 2011, the impression in August 2013 was resolved tension headaches. VA examination reports before and after the resection of the brain tumor in October 2011 show a diagnosis of a headache disorder other than tension headaches. Thus, these VA treatment records are of limited probative value in evaluating the symptomatology of the service-connected headache disorder, which is not tension headaches and did not resolve after the brain tumor was treated. The Board places great weight on the July 2009 VA examination report showing that the Veteran had a headache every two weeks manifested by blurred vision, difficulty sleeping, and decreased cognition. The Board also places great weight on the October 31, 2016, VA examination report revealing that the Veteran had prostrating attacks of non-migraine headache pain once a month over the past several months. In short, the evidence is in equipoise as to whether from March 31, 2009, to October 30, 2016, the headache disorder was manifested by characteristic prostrating attacks occurring on average once a month over the last several months. Thus, a separate 30 percent disability rating for headaches from March 31, 2009, to October 30, 2016, is warranted. 2. Entitlement to a disability rating in excess of 30 percent for headaches While the July 2009 VA examination report showing that the Veteran had a headache every two weeks manifested by blurred vision, difficulty sleeping, and decreased cognition, the headache only lasted 30 minutes. Moreover, the Veteran reported to the December 2010 VA examiner that he can work when he has a headache but that he needs to take medication. A May 2013 VA treatment record reveals that the Veteran retired from his job in February 2013. The Board places great weight on the evidence showing that the Veteran could work when he had a headache and that the headaches in July 2009 lasted only 30 minutes. Although the October 2016 VA examiner noted that the Veteran had very frequent prostrating and prolonged attacks of non-migraine headache pain, that examiner specifically stated that the Veteran did not have prostrating attacks more frequently than once a month. Even though the October 2016 VA examiner noted that the Veteran was unable to work and must rest when he has a severe headache, the VA neurologist in October 2017 noted that the Veteran did not regularly take medication for his headaches. That neurologist noted that impact of the headaches over the course of a year on his ability to work would be limited because his headache would not always occur during a workday and because his headache would resolve with rest. That neurologist further stated that there are no restrictions on job activities. The Board places great weight on the October 2016 VA examiner’s finding that the prostrating attacks were not more frequent than once a month. The Board places greater weight on that finding than on that examiner’s finding that the Veteran had very frequent prostrating and prolonged attacks of non-migraine headache pain because the finding that the attacks only happened once a month is a more specific finding as to frequency. Given that the Veteran could work with headaches when he employed and given that the prostrating attacks in 2016 were not more frequent than once a month, the weight of evidence is against a finding that since March 31, 2009, the headache disorder has been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The final matter is whether the headache disorder underwent an increase in severity during the one-year period prior to the date of claim, March 31, 2009. VA medical records show no complaints or treatment of headaches in the one-year period prior to March 31, 2009. In fact, in January 2009 it was noted that the Veteran did not have headaches. The weight of evidence is against a finding that the headache disorder increased in severity during the one-year period prior to the claim on March 31, 2009. Therefore, a separate compensable rating for headaches prior to March 31, 2009, is not warranted. REASONS FOR REMAND In June 2016, the Board remanded the TBI increased rating claim for the Veteran to undergo a VA examination to determine the severity of the amnestic and cognitive disorders, to include testing addressing the rating criteria for TBI under Diagnostic Code 8045. In October 2016, the Veteran underwent a VA examination that addressed rating criteria for TBI under Diagnostic Code 8045. The RO, however, did not schedule the Veteran for a psychiatric examination even though the rating criteria for mental disorders are potentially applicable to the claim. Therefore, the RO did not comply with the directives of the June 2016 remand. Stegall v. West, 11 Vet. App. 268 (1998). As such, a VA psychiatric examination is necessary. As the psychiatric examination will address functional impairment from the psychiatric disorders, the issue of entitlement to TDIU is inextricably intertwined with the issue of an increased rating for amnestic and cognitive disorders. Harris v. Derwinski, 1 Vet. App. 180 (1991). The RO should afford the Veteran one last opportunity to submit a formal TDIU claim. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for amnestic and cognitive disorders, headaches, seizures, brain tumor, head scars, a check bone fracture, and any other disability pertaining to his TDIU claim, and obtain any identified records. 2. The AOJ must provide the Veteran a formal application for his claim of entitlement to a total disability rating based on individual unemployability. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected amnestic and cognitive disorders. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria for mental disorders. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to amnestic and cognitive disorders alone. 4. After the development in 1 through 3 is completed, the RO should undertake any additional development on the TDIU and increased rating claims as necessary based on the additional evidence of record. 5. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC), with a copy to his representative, and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel