Citation Nr: 19116239 Decision Date: 03/06/19 Archive Date: 03/06/19 DOCKET NO. 15-38 546 DATE: March 6, 2019 ORDER Entitlement to an initial compensable disability rating for near syncope secondary to service connected neck injury (rated as traumatic brain injury with lightheadedness) is granted at 10 percent. REMANDED Entitlement to a disability rating in excess of 20 percent for a glenoid labrum tear of the right shoulder is remanded. FINDING OF FACT Throughout the course of the appeal, the Veteran has shown the symptoms of lightheadedness, vomiting, and headaches which mildly interfere with work, family, and/or other close relationships. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for traumatic brain injury with lightheadedness have been met at 10 percent but no higher. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps Reserves January 2006 to August 2006 and the Marine Corps from June 2007, to September 2007, from June 2008, to July 2009 and from April 2010, to May 2011. This matter comes from a rating decision issued in October 2013. The Veteran filed a timely appeal. See November 2013 NOD, August 2015 SOC, October 2015 Form 9. 1. Entitlement to a compensable disability rating for traumatic brain injury with lightheadedness Service connection for TBI with lightheadedness was granted in an October 2013 rating decision, at which time a noncompensable rating was assigned, effective from May 6, 2011. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 8045 was amended by the VA effective October 23, 2008 to authorize separate disability ratings for separate TBI residuals resulting in different types of impairment. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017). Effective October 23, 2008, there are three main areas of dysfunction 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 those areas of dysfunction may require rating. Id. 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. Cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, is to be separately evaluated, 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. Id. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Physical (including neurological) dysfunction is 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; residuals not listed that are reported on an examination are to be evaluated under the most appropriate diagnostic code, with each condition rated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combined under 38 C.F.R. § 4.25. 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. An additional consideration is the potential need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. 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 level 5, 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. Assign a 100 percent rating if total is the level of evaluation for one or more facets. If no facet is evaluated as total, assign the overall percentage rating based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent rating if 3 is the highest level of evaluation for any facet. Id. 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, neurologic, or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one rating based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single rating 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 rating for each condition. Id., 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. Id., 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. Those 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. Id., Note (3). The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. That classification does not affect the rating assigned under diagnostic code 8045. Id., Note (4). Here, a level of severity of “0” has been assigned for subjective symptoms, including lightheadedness. A higher level of severity of “1” is not warranted unless there are three or more subjective symptoms that mildly interfere with those areas of the Veteran’s functioning, such as intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, and hypersensitivity to light and/or sound. A “2” requires three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of such impairments are marked fatigability, headaches requiring rest periods during most days, and blurred or double vision. Turning to the evidence of record, the Veteran underwent an October 6, 2010 concussion evaluation in service after an IED encounter in which the Veteran reported no loss of consciousness. The Veteran was noted to have 5/5 orientation. An undated brain injury screening tool from the Veteran’s service records marked “no” for ever having been hit in the head, seen by a doctor for a head injury, loss of consciousness due to head injury, a period of being dazed or confused due to a head injury, and no problems with daily life due to a head injury. On a January 7, 2011 Post Deployment health assessment, the Veteran noted that he previously suffered from bad headaches, and that he was seen in sick call for the headaches and was still bothered by them. A November 29, 2011 Private Treatment Record from Dr. P.S. stated that the Veteran reported symptoms of dizziness, fullness in ears, and pressure in head resolved with allergy medication. The Veteran reported that the dizziness occurred a few times per day and was accompanied by nausea and severe, recurrent headaches. The Veteran was diagnosed with nasal allergies, and the physician noted that the tympanic membrane was normal, and that the off-balance sensation could be related to nasal allergies. The physician further stated that there is no asymmetry in the hearing to suggest a retrocochlear lesion or Meniere’s syndrome. On a January 4, 2012 Form 21-526 Claim for Compensation, the Veteran in pertinent part, filed claims for TBI, a broken neck, and a constant light-headed feeling. The Veteran noted that the symptoms began on October 16, 2010. The Veteran submitted a statement in Support of Claim, filed April 3, 2012, stating that he was struck by an IED (improvised explosive device) while on duty, and sustained a concussion and broken neck. The Veteran was later service connected for TBI with lightheadedness and a neck injury. A September 13, 2013 VA treatment history and physical note by Dr. D.L.S. stated that the Veteran was exposed to 3 IED explosions, but 2 of 3 were nowhere close. The Veteran reported that there was only one explosion that rocked the vehicle in which he was riding in and he was wearing a helmet and he hit his head on the glass of the Humvee, but he never had a concussion, confusion, disorientation, any amnesia, and had no medical problems at all. The Veteran reported that some time in February 2013 he noticed that at times when he was sitting or standing he would have some vertigo, as if the room were whirling or spinning and if he tried to get up to walk he would get dizzy and lightheaded and tend to fall but he would not. He had no nausea or vomiting, headaches, confusion, disorientation, or diaphoresis with it. When he is lying down he has no positional vertigo when he turns his head from side to side. He saw an internist, Dr. L., who said the Veteran had eustachian tube dysfunction and gave him a drug called Tenna, which the Veteran tried but it did not seem to help. The Veteran underwent a September 2013 VA examination, in which the examiner stated that the only subjective symptom reported by the Veteran was light headedness. The examiner stated that presyncope due to autonomic nervous system dysfunction best describes the Veteran’s complaint of light-headedness. The examiner stated that the Veteran does not have orthostatic hypotension but rather instability of blood pressure control that is not necessarily positional. The cause of the dysfunction can be traced to the effect of concussion/stretch injury to the cervical sympathetic chain in the neck and the carotid body in the neck. These structures would have been injured at the time of veteran’s neck injury which was severe enough to cause a fracture of the C7 vertebrae. The examiner stated that the Veteran’s lightheadedness is thus a result of instability of autonomic nervous system function causing fluctuations in blood pressure leading to the subjective symptom of feeling light headed which is not severe enough to cause actual syncope. The examiner also concluded that the Veteran also does not have true vertigo; as the subjective symptoms do not relate to vestibular system damage, and that most of the problem stems from pain. The examiner stated that the Veteran’s lightheadedness can be relieved by getting up and walking around, and thus does not impact his ability to work. The examiner stated that the Veteran did not have a psychiatric condition, and did not have a diagnosis of TBI. However, the examiner then stated that the Veteran was diagnosed with TBI in 2010. The examiner stated that the Veteran had no complaints of impairment of memory, attention, concentration, or executive functions, had normal judgement, had appropriate social interactions, normal motor activity, was always oriented to time and place, and no neurobehavioral effects. The Veteran’s October 2015 VA form 9 stated that he has mild headaches daily, daily dizziness resulting in vomiting, impaired judgement, memory difficulty, isolating behaviors, and angry and defensive behaviors. Under the current diagnostic code for which the Veteran is rated, the Veteran’s symptoms of vomiting, dizziness and headaches fall most closely under residuals of TBI not otherwise classified. Based on the clinical findings summarized above, a level of severity of “1” is assigned for the subjective facet, as the Veteran complains of headaches, dizziness and vomiting. The evidence reflects that those symptoms mildly interfere with the Veteran’s functioning. A “2” requires three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of such impairments are marked fatigability, headaches requiring rest periods during most days, and blurred or double vision. The criteria for a “2” under the subjective facet are not met. While the Veteran experiences subjective symptoms, the evidence does not indicate that those symptoms moderately interfere with his functioning. To that end, the Veteran has not reported missing approximately two days from work per month due to headaches. There is no evidence that the Veteran’s other subjective symptoms moderately impact his functioning. Moreover, the VA examiner stated that the Veteran’s lightheadedness can be relieved by getting up and walking around. While headaches, dizziness, and vomiting may moderately interfere with the Veteran’s functioning, there is no evidence that the Veteran experiences three symptoms that moderately interfere with functioning. A “0” is assigned for the memory facet, judgment facet, social interaction facet, orientation facet, motor activity facet, spacial orientation facet, neurobehavioral facet, and the communication facet. The Board notes that the Veteran reported symptoms of impaired judgement, memory difficulty, isolating behaviors, and angry and defensive behaviors in his VA form 9. However, the Veteran has been compensated for those symptoms in an April 2017 Rating Decision, granting an increased evaluation for PTSD to 50 percent based upon the symptoms of panic attacks, suspiciousness, depressed mood, disturbances of motivation and mood, panic attacks, mild memory loss, anxiety, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), difficulty in establishing and maintaining effective work and social relationships, and chronic sleep impairment. Furthermore, there is no competent medical evidence that any of those facets are impaired as a residual of a TBI. To that end, no such impairment was shown on examination for orientation facet, motor activity facet, spacial orientation facet, neurobehavioral facet, and the communication facet. Likewise, the Veteran does not warrant a “total” rating for consciousness, as he is not in a persistently altered state of consciousness, such as vegetative state, minimally responsive state, or in a coma. Indeed, as explained above, assuming that the VA examination testing is valid, the results from that examination did not show deficiency in any of the above areas. Based upon the foregoing, a rating of 10 percent, and no higher, is warranted under DC 8045. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.159, 4.1-4.16, 4.124a, DC 8045 (2016); Gilbert, 1 Vet. App. at 49. However, the Board has also considered whether any other DCs would be appropriate to evaluate the Veteran’s TBI. 38 C.F.R. § 4.1, 4.2; Schafrath, 1 Vet. App. at 595. The Board notes that the record shows varying opinions as to the etiology of the Veteran’s lightheadedness. While the most recent VA examination shows that the Veteran’s lightheadedness is due to an autonomic issue caused by the Veteran’s service connected neck injury, other physicians have opined that the lightheadedness is due to nasal allergies. The Board has considered a rating under DC 6204 for vertigo. Under this DC, a 10 percent rating is warranted for occasional dizziness. A 30 percent rating is warranted for dizziness and occasional staggering. A note in this code further explains that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. As noted above, the Veteran has not been diagnosed with true vertigo, and the Veteran does not have a diagnosis of vestibular disequilibrium. Without any objective findings showing that a diagnosis of peripheral vestibular disequilibrium is appropriate, a compensable rating under DC 6204 is not warranted, pursuant to the specific language of that diagnostic code. The record does not establish that the rating criteria are inadequate for rating the Veteran’s lightheadedness. Specifically, the evidence does not show such an exceptional disability picture as no inadequacy of the available schedular evaluations is demonstrated. Here, the Veteran’s residuals of head and neck injury have been manifested primarily by headaches, lightheadedness and vomiting which are contemplated in the rating criteria.   REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for a glenoid labrum tear of the right shoulder is remanded. The Veteran underwent a VA examination in September 2013 for his right shoulder. Subsequent to the September 2013 VA examination, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. After reviewing the VA examination of record, the Board finds that it is incomplete and requires further medical guidance, in light of the recent holding in Correia. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records related to a right shoulder disability. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private medical evidence. 2. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his right shoulder disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All indicated studies, including x-rays and range of motion testing in degrees, should be performed. The examiner should describe the nature and severity of all manifestations of the Veteran’s right shoulder disability. In order to comply with the Court’s recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record the range of motion for BOTH shoulders in active motion, passive motion, weight-bearing, and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Specifically, if the shoulders cannot be tested on “weight-bearing,” then the examiner must indicate that such testing cannot be done In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups of the right shoulder (if the Veteran now reports flare ups) and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If the Veteran reports flare-ups, the examiner should address the approximate range-of-motion loss in degrees that might be anticipated due to flare-ups in pain or tightness in the right shoulder. In other words, the examiner should determine whether the Veteran experienced additional functional loss, and, if so, state any additional limitation of motion experienced during the appeal period in terms of degrees, if possible. The examiner should also indicate whether the Veteran has any impairment (such as flail shoulder, false flail joint, fibrous union, dislocation, malunion, or clavicle or scapular impairment), and if so degree and/or frequency of impairment. If there is any ankylosis of the right shoulder, specify at what degree it is ankylosed. Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran’s right shoulder disability has upon his ability to perform ordinary activities of daily living. The examiner must provide a rationale for each of the opinions that takes into account the Veteran’s reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 3. Thereafter, the RO/AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Following the completion of the foregoing the RO/AMC should re-adjudicate the Veteran’s claim. If the claim is not granted in full, supply the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel