Citation Nr: 19128576
Decision Date: 04/15/19	Archive Date: 04/12/19

DOCKET NO. 16-14 325
DATE:	April 15, 2019

ORDER

Prior to February 20, 2016, a separate 50 percent rating for headaches as residuals of traumatic brain injury (TBI) is granted.

Prior to August 13, 2014, a separate 10 percent rating (but no higher) for memory loss associated with TBI is granted.

Prior to September 2, 2014, a 70 percent rating (but no higher) for posttraumatic stress disorder (PTSD) with TBI is granted.

From September 2, 2014, to February 19, 2016, a 100 percent rating for TBI with PTSD is granted.

From February 20, 2016, a 70 percent rating (but no higher) for PTSD with TBI is granted.

A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted.



REMANDED

Service connection for an eye disability, as a residual of a TBI, is remanded.

Service connection for erectile dysfunction, as a residual of TBI, is remanded.

Entitlement to a compensable rating for headaches as residuals of TBI from February 20, 2016 is remanded.

Entitlement to an extraschedular rating for headaches as residuals of TBI is remanded.

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded.

FINDINGS OF FACT

1. Prior to February 20, 2016, the Veteran’s postconcussive headaches resulted in prostrating attacks more frequently than once per month.  See September 2014 VA headaches examination.

2. Prior to August 13, 2014, the Veteran’s TBI manifested by no worse than level “1” for mild memory loss and social interaction; prior to that date, memory loss was found to be only a symptom of TBI, not PTSD.

3. From August 21, 2013, to September 1, 2014, the symptoms of the Veteran’s TBI and PTSD could not be clearly separated.  Given his competent and credible reports of suicidal ideation, his symptoms resulted in occupational and social impairment with deficiencies in most areas; his symptoms have not caused total social and total occupational impairment and have not resulted in worse than level “1” for mild memory loss, social interaction, and subjective symptoms.

4. From September 2, 2014, to February 19, 2016, the symptoms of the Veteran’s TBI and PTSD could not be clearly separated.  On September 2014 VA TBI examination, his TBI manifested in total impairment for memory, attention, concentration, and executive functions.

5. From February 20, 2016, the symptoms of the Veteran’s TBI and PTSD could not be clearly separated. Given his competent and credible reports of suicidal ideation, his symptoms resulted in occupational and social impairment with deficiencies in most areas; his symptoms have not caused total social and total occupational impairment and have not resulted in worse than level “1” for mild memory loss and social interaction.

6. The Board finds that the medical and lay evidence reasonably shows that, by virtue of his service-connected PTSD with TBI, the Veteran is precluded from obtaining and maintaining regular substantially gainful employment.  He currently meets the schedular requirement for TDIU.

The Veteran has one year of college education. He previously worked as a Fish and Game officer but was fired after subduing a suspect and charged with assault with a deadly weapon. He then worked as a facilities manager, but was fired from that job.  He most recently worked as a nuclear mechanic.   A September 2014 VA TBI DBQ examiner concluded that the Veteran’s TBI leads to memory impairment and emotional changes which makes functioning effectively difficult; visual changes related to his TBI also impact his ability to work. The October 2014 and February 2016 VA headaches examiners determined that the Veteran’s headache condition impacts his ability to work in that he cannot concentrate due to pain.

Although other VA examinations in the record suggest that the Veteran would be capable of engaging in substantially gainful employment, the Board finds that the evidence is in at least relative equipoise; resolving reasonable doubt in his favor, as required, the Board finds that a TDIU rating is warranted.

CONCLUSIONS OF LAW

1. Prior to February 20, 2016, the criteria for a 50 percent rating (but no higher) for headaches as residuals of TBI have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.10, 4.124a, Diagnostic Code (Code) 8100.  

2. Prior to August 13, 2014, the criteria for a separate 10 percent rating (but no higher) for memory loss associated with TBI have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.10, 4.124a, Code 8045.

3. Prior to September 2, 2014, the criteria for a 70 percent rating (but no higher) for PTSD with TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124(a), 4.126, 4.130, Codes 8045, 9411; see also Bankhead v. Shulkin, 29 Vet. App. 10 (2017).

4. From September 2, 2014, to February 19, 2016, a 100 percent rating for TBI with PTSD is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124(a), 4.126, 4.130, Codes 8045, 9411.

5. From February 20, 2016, a 70 percent rating (but no higher) for PTSD with TBI is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124(a), 4.126, 4.130, Codes 8045, 9411; see also Bankhead v. Shulkin, 29 Vet. App. 10 (2017).

6. A schedular TDIU rating is warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty from July 1982 to July 1985, from January 2002 to May 2002, and from October 2004 to January 2006, with additional periods of National Guard service; he is in receipt of the Combat Action Badge.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In March 2019, a videoconference hearing was held before the undersigned.

As an initial matter, the Board would take this opportunity to thank the Veteran for his service and to note that he is truly a strong wounded warrior.

The Board notes that it has reviewed all of the evidence in the Veteran’s record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claims.

Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7. 

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (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 symptoms for one condition do not duplicate the symptoms of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).





1. Separate rating for headaches as residuals of TBI.

Under Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating; characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating; very frequent completely prostrating and prolonged attacks that produce severe economic inadaptability warrant a 50 percent rating.  See 38 C.F.R. § 4.124a, Code 8100.  The 50 percent rating is the maximum allowed under VA law and regulations for this Code.

The Veteran suffered a TBI during service and service connection for same has been granted.  As the Veteran has reported chronic headaches as a symptom of his TBI, the RO arranged for VA headache examinations.  

On September 2014 VA headache examination, the Veteran reported constant headache pain, pulsating or throbbing head pain, and pain on both sides of the head that worsens with activity; he also reported nausea, vomiting, and sensitivity to light.  The Veteran reported prostrating attacks that occur more frequently than once per month.  The examiner determined that the Veteran’s headaches impact his ability to work because he cannot concentrate due to pain.

Because there is no question that the Veteran’s headaches are a symptom of his TBI, the Board finds that a separate rating for headaches as a residual of TBI is warranted.  Based on the foregoing, the Board grants a 50 percent rating for headaches prior to February 20, 2016, based on the results of the September 2014 headache examination that showed the required prostrating attacks to warrant such a rating.  (As discussed below, the Board is remanding the matter of entitlement to a compensable rating for headaches from February 20, 2016.)

2. Increased ratings for PTSD with TBI.

The Veteran’s PTSD with TBI is currently rated 50 percent disabling under Code 8045-9411.  Hyphenated diagnostic codes indicate that the rating is by analogy. Here, the rating is by analogy to TBI (Code 8045) and to PTSD (Code 9411). 

Code 8045, effective October 23, 2008, states that 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 these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Code 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. 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 separately 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. Id.

Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 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, emotional/behavioral symptoms are evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id.

Physical (including neurological) dysfunction, based on the following list, is evaluated 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 that are not listed but that are reported on an examination should be evaluated under the most appropriate diagnostic code. Each condition is to 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.

The need for SMC is also to be considered 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.

The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is to be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation assigned is 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, a 70 percent evaluation is assigned 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 or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation based on the same manifestations cannot be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, separate evaluations are assigned for each condition. See 38 C.F.R. § 4.124a, 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. See 38 C.F.R. § 4.124a, 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. See 38 C.F.R. § 4.124a, Code 8045, 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. This classification does not affect the rating assigned under Code 8045. See 38 C.F.R. § 4.124a, Code 8045, Note (4). 

Code 8045 notes that manifestations of TBI may overlap with a comorbid mental disorder; however, more than one evaluation based on the same manifestations cannot be assigned. Therefore, if the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. See 38 C.F.R. § 4.124a, Code 8045. In this case, the Board finds that there are distinct periods of time when the symptoms of TBI and PTSD overlap and are unable to be separated, and when the symptoms can be clearly separated.

As noted above, the Veteran is in receipt of a 50 percent rating for PTSD with TBI.  In prior rating decisions, the RO has determined that Code 9411 provides the better assessment of overall impaired functioning.

Under Code 9411, a 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity.  A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). A 100 percent evaluation is warranted for total occupational and social impairment. 38 C.F.R. § 4.130, Code 9411.

The list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) (emphasis added).  Furthermore, when evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment (as opposed to occupational impairment), but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

On June 2013 VA PTSD examination, the examiner determined that it was not possible to differentiate the Veteran’s PTSD and TBI symptoms “because there is so much overlap.”  The Veteran reported being hospitalized for what he thought was a heart attack; in actuality, he was having a severe anxiety attack.  He has been unable to sleep in the same bed as his wife because of his violent sleeping habits.  He suffered from panic attacks, nightmares, depression, and intrusive recollections of war. The examiner determined that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  His symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation.

On August 2013 VA TBI examination, the Veteran’s judgment, motor activity, visual spatial orientation, and consciousness was normal; he was able to communicate by spoken and written language and was oriented to person, time, place, and situation.  He had a mild complaint of memory loss and his social interaction was occasionally inappropriate. 

On August 2014 VA PTSD examination, the Veteran reported that he had a good relationship with his parents while growing up and continues to be close to them, but that he no longer had a relationship with his younger brother.  He has been married for 32 years and while the marriage is good, he had significant problems with his libido.  He tended to isolate himself by working and spending time alone, which negatively impacted his marriage.  He gets along well with his two adult sons.  The examiner determined that the Veteran’s concentration and memory difficulties are as likely as not attributable to his TBI, depression, or PTSD.  

The examiner ultimately determined that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  His symptoms included hypervigilance, problems with concentration, sleep disturbance, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and disorientation to time or place (due to flashbacks).

On September 2014 VA TBI examination, the Veteran reported that his current symptoms were chronic headaches, word finding difficulty, concentration problems, diplopia, and erectile dysfunction (in addition to severe PTSD and depression). His judgment, motor activity, visual spatial orientation, and consciousness were normal. His social interaction was routinely appropriate and was always oriented to person, time, place, and situation. He had three or more subjective symptoms that mildly interfered with work (headaches, dizziness, and diplopia), and one or more behavioral effects that did not interfere with workplace or social interaction (PTSD). He was able to communicate by spoken and written language.  There was, however, objective evidence on testing of impairment of memory resulting in severe functional impairment.  The examiner determined that the Veteran’s residual conditions impact his ability to work in that memory impairment and emotional changes make functioning effectively difficult; his visual changes can also interfere with doing work.

On February 2016 VA TBI examination, the Veteran complained of double vision when tired, difficulty with depth perception, sensitivity to light causing pain behind his eyes, short term memory impairment, and headaches.  The examiner noted a complaint of mild memory loss and occasionally inappropriate behavior. His judgment, motor activity, visual spatial orientation, and consciousness was normal; he was oriented, had no neurobehavioral effects, was able to communicate by spoken and written language, and had no subjective symptoms that interfered with work.  His residuals included visual impairment and headaches.  The examiner determined that the Veteran’s TBI did not impact his ability to work.

Based on the foregoing, the Board finds that staged (and, for a period, separate) ratings are warranted.



From June 25, 2012, to August 12, 2014

The Board finds that a separate 10 percent rating for memory loss as due to TBI is warranted prior to August 13, 2014.

On June 2013 VA PTSD examination, memory loss was not considered to be a symptom of PTSD.  However, on August 2013 VA TBI examination, a complaint of mild memory loss was noted.  Under 38 C.F.R. § 4.124a, this type of complaint equates to a level 1 impairment, which warrants a 10 percent rating under Code 8045.  

On August 13, 2014, VA PTSD examination, memory loss was considered a symptom of both PTSD and TBI.  Accordingly, a separate rating cannot be assigned from that date.  Instead, as discussed below, the Board must determine which diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  See 38 C.F.R. § 4.124a, Code 8045.

From June 25, 2012, to September 1, 2014, and from February 20, 2016

The Board finds that a 70 percent rating for PTSD with TBI is warranted prior to September 2, 2014, and from February 20, 2016.  

The Veteran has reported extreme physical reactions when something reminds him of service.  He has loss of interest in the activities he used to enjoy and feels distant or cut off from other people. He also feels that his future will be cut short, has difficulty concentrating, is hyperalert, and has angry outbursts. During August 2012 VA treatment, he reported that a hospital visit was necessary to determine whether he was having a heart attack; it was determined to be an anxiety attack.  His VA treatment records, VA examinations, and sworn testimony note that he has suicidal ideation.  See June 2013 and August 2014 VA PTSD examinations.  Under 38 C.F.R. § 4.130, Code 9411, a 70 percent rating is warranted for these symptoms. 

In reviewing the results of his August 2013 VA TBI exam, the Veteran would not be entitled to more than a 10 percent rating for his symptoms as he had only mild memory loss and occasionally socially inappropriate social interaction, each warranting a level 1 impairment.  See generally 38 C.F.R. § 4.124a, Code 8045.

Therefore, because the diagnostic criteria under Code 9411 provides a significantly better assessment of overall impaired functioning, the Board finds that a 70 percent rating is warranted for PTSD with TBI prior to September 2, 2014, and from February 20, 2016.  (As discussed below, the Board finds that a period of the appeal warrants a 100 percent rating based on TBI symptoms that are worse than the Veteran’s reported PTSD symptoms.)  

From September 2, 2014, to February 19, 2016

On September 2, 2014, VA TBI examination, the Veteran was found to have objective evidence of severe impairment of memory resulting in severe functional impairment due to 1/5 memory recall.  Under Code 8045, this results in total impairment, warranting a 100 percent disability rating.  As this results in a rating higher than the 70 percent that would otherwise be granted for PTSD, rating the Veteran’s disability under Code 8045 provides a significantly better assessment of overall impaired functioning.

In sum, the Board finds that the evidence of record establishes that the Veteran’s overall symptoms warrants a 70 percent rating for PTSD with TBI (with Code 9411 providing the better assessment of overall impaired functioning) from June 25, 2012, to September 1, 2014, and from February 20, 2016; a 100 percent rating is warranted for PTSD with TBI (with Code 8045 providing the better assessment of overall impaired functioning) from September 2, 2014, to February 19, 2016.  Additionally, the Board finds that a separate 10 percent rating is warranted for TBI from June 25, 2012, to August 12, 2014, to account for the Veteran’s memory impairment that was solely a symptom of his TBI, and not PTSD, at that time.







REASONS FOR REMAND

1. Service connection for an eye disability, as secondary to a TBI, is remanded.

2. Service connection for erectile dysfunction, as a residual of TBI, is remanded.

On August 2013 VA TBI examination, no complaints of vision or erectile dysfunction were noted. 

On September 2014 VA TBI examination, the Veteran complained of diplopia and erectile dysfunction. The examiner identified diplopia as one of the three or more subjective symptoms of TBI that mildly interfered with work.  The examiner determined that diplopia is a residual of TBI but determined that erectile dysfunction was less likely a residual of TBI.  He did not provide any rationale for these conclusions.  

The Board notes that the same examiner also performed a September 2014 VA cranial nerves examination.  He indicated that the Veteran’s cranial nerves II-IV were affected, which requires the completion of an Eye DBQ; this was not done.   

During his February 2016 VA TBI examination, the Veteran complained of double vision when tired, difficulty with depth perception, and sensitivity to light causing pain behind his eye.  The examiner determined that an eye examination was needed to determine if the Veteran suffers from diplopia and problems with depth perception as secondary to his TBI.

In light of the foregoing, the Board therefore finds that examinations are necessary to determine whether the Veteran’s eye disability and erectile dysfunction are residuals of his TBI.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

3. Entitlement to a compensable rating for headaches as residuals of TBI from February 20, 2016, is remanded.

The Board finds that the February 2016 VA headaches examination is inadequate in that the examiner did not consider the effect of any reported medication used to treat the Veteran’s headaches when concluding that he did not have any prostrating attacks.  Accordingly, a remand is required.

4. Entitlement to an extraschedular rating for headaches as residuals of TBI is remanded.

Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.”  38 C.F.R. § 3.321(b)(1).  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 

Therefore, initially, there must be a comparison between the level of severity and symptoms of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptoms, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptoms and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.”  38 C.F.R. § 3.321(b)(1) (related factors may include factors such as “marked interference with employment” and “frequent periods of hospitalization”).

In this case, the Board finds that the schedular rating available under the provisions of 38 C.F.R. § 4.124a, Code 8100, may be inadequate because the criteria do not adequately address the Veteran’s reports of nausea, vomiting, pain, and sensitivity to light.  See October 2014 and February 2016 VA headaches examinations. Specifically, Code 8100 bases compensable ratings simply on the existence and frequency of prostrating attacks and does not address these additional symptoms.  Accordingly, referral is made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the assignment of an extraschedular rating is warranted for the Veteran’s headaches as residual of TBI.  As such, a remand is necessary.

5. Entitlement to SMC based on aid and attendance is remanded.

A claim for increased disability compensation may include the “inferred issue” of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010) (requiring VA to assess all of the claimant’s disabilities to determine whether entitlement to SMC under 38 U.S.C. § 1114(s) is established whenever a veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC).  

Based on the grant of service connection and increased rating claims and TDIU (see above), additional development is needed to determine whether the Veteran is entitled to SMC for regular aid and attendance.  Additionally, to the extent that these other remanded claims may impact adjudication of SMC claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).  The issue of whether entitlement to SMC  is warranted is also intertwined with the implementation of this Board’s decision by the AOJ.



These matters are REMANDED for the following action:

1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the AOJ must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received.

2. Obtain for the record complete clinical records of all VA evaluations and treatment the Veteran has received for the disabilities remaining on appeal.

3. Provide the Veteran with the required information under VA’s duty to notify and assist. Particularly, the Veteran must be notified of how to substantiate a claim for entitlement to SMC pursuant to 38 U.S.C. § 1114. 

4. Implement the Board’s grant of a 50 percent rating for headaches prior to February 20, 2016; the 10 percent rating for memory loss prior to August 13, 2014; the 70 percent rating for PTSD with TBI prior to September 2, 2014, and from February 20, 2016; and the 100 percent rating for TBI with PTSD from September 2, 2014, to February 19, 2016.

5. Thereafter, arrange for a VA examination to determine the nature and cause of the Veteran’s erectile dysfunction.  The claims file (including this remand) must be reviewed by the examiner.  Based on a review of the record and examination and interview of the Veteran, the examiner must opine as to the following:

(a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction is a residual of his service-connected TBI/PTSD?

(b) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction was caused by his service-connected TBI/PTSD?  

(c) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction was aggravated by his service-connected TBI/PTSD? Aggravation in this context means the disability increased in severity beyond its normal progression.

If aggravation is found, the opinion provider should indicate, to the extent possible, the approximate baseline level of disability before the onset of aggravation.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

6. Thereafter, arrange for a VA examination to determine the nature and cause of the Veteran’s eye disabilities.  The claims file (including this remand) must be reviewed by the examiner.  Based on a review of the record and examination and interview of the Veteran, the examiner must opine as to the following:

(a) Identify, by diagnosis, all eye/vision disabilities reflected in the record during the appeal period (from June 2011 to present), to specifically include diplopia.

(b) For EACH eye disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such is a residual of the Veteran’s service-connected TBI/PTSD?

(c) If not, is it at least as likely as not (a 50 percent or greater probability) that such was caused by the Veteran’s service-connected TBI/PTSD?  

(d) If not, is it at least as likely as not (a 50 percent or greater probability) that such was aggravated by the Veteran’s service-connected TBI/PTSD? Aggravation in this context means the disability increased in severity beyond its normal progression.

If aggravation is found, the opinion provider should indicate, to the extent possible, the approximate baseline level of disability before the onset of aggravation.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

7. Arrange for a VA headaches examination to determine the symptoms and severity of the Veteran’s headaches since February 20, 2016.  The claims file (including this remand) must be reviewed by the examiner.  Based on a review of the record and examination and interview of the Veteran, the examiner must opine as to the following

(a) Has the Veteran had any prostrating attacks of headaches since February 20, 2016, and if so, what is the frequency and duration of such prostrating attacks?

(b) Are the Veteran’s headaches characterized by very frequent completely prostrating and prolonged attacks that have produced severe economic inadaptability?

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

8. Thereafter, the issue of whether an extraschedular rating for the Veteran’s headaches as residuals of TBI is warranted must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for initial adjudication.  As required by recent case law, the resulting decision MUST include (1) a statement of reasons for the decision and (2) a summary of the evidence considered.   Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015); see 38 U.S.C. § 5104.  

9. Conduct any additional development deemed necessary to adjudicate the issue of entitlement to SMC based on the need for aid and attendance.



 

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	T. Matta, Counsel