Citation Nr: 19130605
Decision Date: 04/18/19	Archive Date: 04/18/19

DOCKET NO. 14-12 958
DATE:	April 18, 2019

ORDER

Entitlement to an initial rating of 70 percent for posttraumatic stress disorder (PTSD), prior to January 14, 2014, is granted.

Entitlement to a rating in excess of 70 percent for PTSD is denied.

Discontinuation of a 10 percent rating for traumatic brain injury (TBI) from February 15, 2018 was proper.

Entitlement to a separate 30 percent rating for vertigo due to TBI, from September 1, 2011, is granted.

Entitlement to an initial 50 percent rating for migraine headache, prior to February 7, 2018, is granted.

Entitlement to a rating in excess of 50 percent for migraine headaches is denied.

Entitlement to total disability based on individual unemployability (TDIU) is denied.

REMANDED

Entitlement to an initial rating in excess of 10 percent for a thoracolumbar spine disability is remanded.

Entitlement to an initial rating in excess of 10 percent for left ankle instability is remanded.

Entitlement to an initial rating in excess of 10 percent for left lower extremity nerve disability, prior to December 2, 2015, is remanded.

Entitlement to a rating in excess of 20 percent for left lower extremity nerve disability from December 2, 2015 is remanded.

FINDINGS OF FACT

1. During the entire period on appeal, the Veteran’s PTSD with TBI manifested in occupational and social impairment with deficiencies in most areas due to symptoms such as chronic sleep impairment, irritability, suicidal ideation, spatial disorientation, impairment of memory, and difficulty in establishing and maintaining effective work and social relationships.

2. The Veteran’s PTSD with TBI has not manifested in total occupational and social impairment.  His PTSD with TBI has not included symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name.  The Veteran has attended school, worked full-time, remained married/attended couples therapy, lived with relatives, and welcomed/helped to care for four children during the period on appeal. 

3. In a March 2018 rating decision, the RO discontinued a separate 10 percent rating for TBI, and combined the Veteran’s TBI with his PTSD rating, effective February 15, 2018.  The RO did not provide a proposed rating reduction; however, the reduction did not result in a change in combined compensation for the Veteran. 

4. At the time of the March 2018 rating decision, the 10 percent evaluation for the Veteran’s TBI had been in effect since September 1, 2011.

5. The Veteran was in receipt of more than one rating for his memory impairment, receiving a separate 10 percent for TBI and as part of his staged PTSD ratings.  Medical evidence included that his memory loss was due to both his PTSD and TBI.  His PTSD rating includes contemplation of his symptoms of impaired judgment, impaired orientation, and impaired memory. 

6. Resolving reasonable doubt in the Veteran’s favor, during the entire period on appeal he had vertigo (from service-connected TBI) that resulted in dizziness with occasional staggering. 

7. Resolving reasonable doubt in the Veteran’s favor, his migraine headaches were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability during the entire period on appeal.

8. With this decision, the Veteran’s total schedular rating is 100 percent for the entire period on appeal.  

9. The Veteran had been employed full-time in a protected environment from at least June 2015.  His protected environment/marginal employment is based on accommodations for his psychiatric and physical disabilities.  He does not have a “single” disability upon which TDIU rating would be appropriate to afford for SMC consideration.

CONCLUSIONS OF LAW

1. The criteria for an initial rating of 70 percent for PTSD with TBI, prior to January 14, 2014, have been met.  38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, 4.130, Diagnostic Codes 8045, 9411 (2018).

2. The criteria for a rating in excess of 70 percent for PTSD with TBI have not been met. 38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411

3. The discontinuance of a separate 10 percent rating for TBI due to memory loss was proper.  38 C.F.R. §§ 3.350, 4.7, 4.124a, 4.130, Diagnostic Codes 8045 and 9411.

4. The criteria for a separate 30 percent rating for vertigo due to TBI, from September 1, 2011, have been met.  38 C.F.R. § 4.87, DC 6204.

5. The criteria for an initial rating of 50 percent for migraine headaches, prior to February 7, 2018, are met.  38 U.S.C. §§ 1110, 1155, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100.

6. The criteria for a rating in excess of 50 percent for migraine headaches are not met.  38 U.S.C. §§ 1110, 1155, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100.

7. The issue of entitlement to TDIU is moot.  38 U.S.C. § 1155; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the U.S. Navy from August 2003 to August 2007 and in the U.S. Army from June 2010 to August 2011.  During his second period of service, the Veteran earned the Afghanistan Campaign Medal with Campaign Star, the Global War on Terrorism Expeditionary Medal, and the Army Commendation Medal, among other awards.  He served in combat in Afghanistan from August 2010 to June 2011.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2013, March 2014, March 2018, and May 2018 (TDIU) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

The February 2013 rating decision addressed 10 issues, granting service connection for a thoracolumbar spine disability, TBI, tinnitus, compression neuropathy of the right and left lower extremities, migraines, and left ankle disability and providing initial 10 percent and noncompensable ratings.  The rating decision also denied entitlement to service connection for anxiety, insomnia, and memory loss.

The March 2014 rating decision granted entitlement to service connection for PTSD and assigned staged ratings: 30 percent prior to January 14, 2014, and 70 percent thereafter.  At this time, the Veteran was receiving separate staged ratings for PTSD (30 and 70 percent) and a 10 percent rating for TBI for “mild memory loss.”

A March 2018 rating decision provided an increased 50 percent rating for migraines from February 7, 2018, increased 20 percent rating for left lower extremity radiculopathy from December 2, 2015, and discontinued the Veteran’s separate 10 percent rating for TBI.  The rating decision combined the Veteran’s TBI and PTSD ratings into the 70 percent rating for PTSD as his mild memory loss was addressed by his PTSD rating. 

The May 2018 rating decision denied entitlement to TDIU.

The Board notes that the Veteran initially appealed the 10 percent rating that was assigned for his right lower extremity compression neuropathy, which was provided in the February 2013 rating decision.  However, on appeal, the RO determined that clear and unmistakable error had occurred in providing service connection for a right lower extremity nerve condition.  In March 2014, the RO issued a rating decision proposing to sever service connection for this issue.  A March 2015 rating decision severed service connection for right lower extremity compression neuropathy, effective June 1, 2015.  Although the Veteran had filed a notice of disagreement with the initial rating assigned in the February 2013 rating decision, the Veteran and his attorney did not file a notice of disagreement with the March 2015 rating decision which severed service connection based on clear and unmistakable error in the February 2013 rating decision (that the Veteran had not been diagnosed with a right lower extremity nerve disability/compression neuropathy).  As such, this issue is not specifically before the Board.  The Board is remanding the Veteran’s claim for an increased rating for his thoracolumbar spine disability, which will include an updated VA examination that addresses whether he has any right lower extremity neurological disorder related to his spine disability.

Although the Veteran and his attorney did not file a separate notice of disagreement (NOD) with the March 2018 rating decision which discontinued his separate 10 percent rating for TBI, they did present testimony during their Board hearing that the Veteran wanted a separate rating for his TBI due to his vertigo.  As will be addressed below, the Board finds that restoration of the separate 10 percent for TBI due to memory loss is not warranted and did not result in an overall reduction in compensation payments.  

In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing.  A transcript of the hearing is contained in the record.

1. Restoration of a 10 percent rating for traumatic brain injury (TBI) from February 15, 2018 

As noted above, in a March 2018 rating decision the RO discontinued the separate 10 percent rating for TBI and combined the Veteran’s service connected TBI with his PTSD, under the 70 percent rating provided for PTSD.  This discontinuance occurred because the Veteran was receiving a 70 percent rating for PTSD which considered memory loss and a separate 10 percent rating for TBI due to mild memory loss.  This is contrary to the Rule Against Pyramiding.  The rule against pyramiding is addressed in 38 C.F.R. § 4.14, which notes that evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. 

VA regulations provide that where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105 (e).  Here, the discontinuation of the 10 percent rating for traumatic brain injury did not result in the reduction of compensation payments.  Compensation payments are based on the combined disability ratings.  Combined disability ratings are determined by 38 C.F.R. § 4.25 Combined Rating Table.  The Combined Rating Table shows that the Veteran would have a combined 90 percent rating with and without the separate 10 percent rating for TBI.  With the separate 10 percent rating the Veteran results in a combination of “93” and without the separate 10 percent a combination of “92;” both of these numbers would be rounded down to a combined rating of 90 percent.  

As the discontinuation did not result in a reduction of his overall combined rating or a reduction in compensation payments being made, notice was not required. 

A reduction of a rating generally must be supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered.  Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).  If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran.  In other words, a rating reduction must be supported by a preponderance of the evidence.  38 U.S.C. § 5107 (a) (2012); Brown v. Brown, 5 Vet. App. 413 (1993).  This will be additionally addressed below with the increased rating claims for PTSD and the separate 10 percent rating for vertigo due to TBI.

In the February 2013 rating decision, the RO provided a separate 10 percent rating for TBI due to mild memory loss.  Subsequently, a March 2014 rating decision granted entitlement to service connection for PTSD and provided staged 30 and 70 percent ratings.  These ratings included contemplation of “mild memory loss” and “impairment of short- and long-term memory.”  A separate disability rating for the Veteran’s TBI is not warranted as the primary symptoms (memory loss) exhibited cannot be separated from his symptoms of PTSD and rating based on the PTSD criteria results in a higher rating.  See 38 C.F.R. § 4.124a, Diagnostic Code 8045, 38 C.F.R. § 4.130, Diagnostic Code 9411.  Given that the separate 10 percent rating for TBI for memory loss was against the Rule Against Pyramiding once the RO granted service connection for PTSD with memory loss, and the rating criteria under Diagnostic Code 8045 for providing ratings for TBI, the March 2018 discontinuance was proper.  As will be addressed below, the Veteran’s impaired judgement (irritability), and impaired orientation are also considered in his 70 percent rating.  

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Board notes that the Veteran’s service treatment records from his second period of service are lost.  The record contains a March 2012 memorandum of unavailability based on VA’s effort to obtain the records.  The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The issues on appeal are increased rating decision but are initial ratings which would have included review of his service treatment records if they had been available. 





2. Entitlement to increased staged ratings for PTSD

The Veteran is currently in receipt of staged ratings for PTSD.  As service-connection for PTSD is already established, the Board will not address the trauma which established the diagnosis and instead will focus on symptoms during the period on appeal.  The Veteran is currently assigned a 30 percent rating prior to January 14, 2014, and 70 percent thereafter.  He has alleged that his PTSD is more severe than contemplated by his staged ratings.  

Under the General Rating Formula, a 10 percent evaluation is provided for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  38 C.F.R. § 4.130. 

A 30 percent disability evaluation is warranted for 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent disability rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessive rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443. 

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission.  38 C.F.R. § 4.126 (a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.  Id.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (b).

Prior to January 14, 2014

In January 2012, the Veteran was afforded a VA general medical examination which included a PTSD evaluation.  The evaluation included a diagnosis of mild chronic PTSD.  The Veteran “functions well in his environment and is motivated to improve his symptoms; he has sought treatment when his marriage was troubled and is motivated to feel better.”  The Veteran was insightful and motivated.  He was worried about his future in law enforcement after he finished a degree in Criminal Justice.  His wife noticed that he was “more irritable and jumpy.”  He felt unsafe and hypervigilant in many situations and worried about his safety.  He had minor problems with short-term memory, “likely due to hypervigilance and hyperarousal.”  He presented as a calm, insightful individual who wanted to make a positive impact on his community.  The examiner felt that the Veteran had occupational and social impairment due to mild or transient symptoms (criteria for a 10 percent rating).  The examiner noted that the Veteran had not been diagnosed with TBI but had been exposed to several blasts.  He denied losing consciousness.  The examiner noted that in the Army his MOS was in Civil Affairs, but that after his first deployment to Afghanistan, he became very hypervigilant and could no longer work in Civil Affairs; he began patrolling the area and allowing others to conduct the talks instead.  He was a full-time student in Criminal Justice at the time of the evaluation.  He was doing well in school and had a 10-month old child.  He had been married for a year and reported a “good relationship.”  He had “good friends that he stay[ed] close with.  Has not lost interest in hobbies but is limited by time and money.  Would like to get into law enforcement.”  His symptoms included difficulty falling and staying asleep, irritability and outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response.  He also endorsed anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood.

The Veteran was also afforded a TBI evaluation in connection with the January General medical examination.  The examiner diagnosed TBI.  He noted that tinnitus and headaches began following his TBI incidents (multiple explosions near the Veteran that “dazed” him).  Regarding TBI symptoms he was noted to have mild memory loss with the description of “frequent short-term memory problems such as not remember the examiner’s name after two introductions.”

A second January 2012 TBI examination included that the Veteran had residual diagnoses of tension headaches and vertigo.  The Veteran complained of increasing short-term memory problems and carried a diagnosis of PTSD.  He had an MMSE test of 30 out of 30.  He had subjective symptoms of mild or occasional headaches, mild anxiety, tinnitus, and vertigo.  The examiner noted that the Veteran’s “memory complaints most likely from PTSD with increasing problems over time and the gravity of the TBIs.”

January 14, 2014

On January 14, 2014, the Veteran was afforded another PTSD examination.  The evaluation included a notation that a prior TBI examination indicated TBI symptoms of headaches, problems with concentration, and problems with immediate and recent memory.  The examiner noted that it was possible to differentiate the symptoms associated with PTSD and TBI.  PTSD symptoms included: persistent reexperiencing of trauma during wake and sleep; persistent symptoms of social and situational avoidance, and emotional numbing, persistent symptoms of increased arousal, including hypervigilance, irritability, and exaggerated startle response.  His TBI symptoms were noted as “prior TBI examination indicated TBI symptoms of headaches, problems with concentration, and problems with immediate and recent memory.”  The Board notes that the TBI examination had indicated the Veteran’s memory problems were related to his PTSD.  The examiner selected that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  However, the examiner noted that the Veteran’s PTSD symptoms resulted in “significant difficulty in social function and in his marriage.”  The symptoms were noted to not be presently impairing his work because he worked alone.  It was noted that TBI symptoms of headaches, problems with concentration, and problems with immediate and recent memory would cause him to be slower in completing work.  The Board notes that as the Veteran’s PTSD rating includes his TBI symptoms that are not separately ratable and that overlap with his PTSD symptoms.  As such, his concentration and memory problems will be considered as part of this “PTSD” rating.  

The Veteran reported that since his 2012 examination, he had become “increasingly socially isolated, ha[d] fewer friends, fewer out of home activities.  He was still married, but their relationship was increasingly problematic, due to his difficulty going out to social activities.”  The Veteran was able to complete his degree in Criminal Justice Administration in December 2013, despite difficulties being in classroom situations.  He had been working for AT&T for the past six months.  He had participated in couples’ therapy until June 2013 but stopped because he felt it was not producing lasting change.  He had not received individual therapy, but stated he knew he needed treatment.  He stated he did not take medications and tried to “work as much as he could, because he was able to be alone when working.”  He had symptoms of persistent negative emotional state, markedly diminished interested in activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance.  He had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, and obsessional rituals which interfere with routine activities.  On mental status evaluation, he was appropriately dressed and groomed, oriented, and cooperative.  He had a subdued mood and affect.  He had periods of unprovoked irritability, without violence.  His wife reported crying spells during his sleep. 

The Board notes that the 2014 evaluation was more thorough than the 2012 General Medical examination, as it included a mental status evaluation with greater detail and addressed the specific impact of the Veteran’s PTSD symptoms on his social and occupational/school functioning.  

A September 2014 VA treatment record included that the Veteran was employed full-time by Century Link.  He also worked overtime, more than 40 hours per week.  He denied suicidal ideation, and “cope[d] with his PTSD by staying busy and working.”  As noted above, the Veteran used work as a way of prolonging his social isolation, including from his wife and children. 

A November 2014 social worker consultation included that the Veteran presented with a euthymic mood and congruent affect.  He was referred to mental health from his primary care physician.  He had been married for 4 years and had a 3-year old son.  He was currently employed full time as a “tech” for Century Link.  He was originally from San Diego but moved to Arizona in April for work.  He reported struggling with symptoms related to PTSD since his deployment spanning 2010 to 2011.  He felt he had “lost [his] buffer” during deployment and he would become immediately upset and irritable, which impacted his relationship with his family.  He stated his spouse told him he was “different” after he came back from deployment.  He noted that he was also diagnosed with a TBI, which impacted his job due to impaired memory; he lost track of what he is doing at work.  He reported some feelings of hopelessness but denied experiencing any suicidal ideation.  He endorsed symptoms of low energy and motivation, low self-worth, hopelessness, poor concentration, and anhedonia.  He also had PTSD symptoms of irritability, intrusive thoughts, hypervigilance, hyperarousal, avoidance, social isolation, and recurring nightmares.  On mental status evaluation, the Veteran was well-groomed with good hygiene, normal behavior, and normal speech.  He had a euthymic mood with congruent affect.  He had a normal thought process but was preoccupied by his psychosocial stressors.  His memory was intact, and his attention/concentration were noted to be good.  His judgment and insight were also good.  He denied homicidal ideation.  He was assessed with PTSD and unspecified depressive disorder.  There were no indications of hallucinations, delusional beliefs, obsessive thoughts or symptoms of dissociation present.  “Both short and long-term memory appeared intact but [the Veteran] report[ed] memory issues relating to TBI.”

In December 2014, the Veteran had an initial therapy session.  He continued to experience irritability, disturbed sleep, low mood, and he was extremely bothered by his lack of patience with his four-year old son and wife.  He stated his back pain frequently woke him at night, and he was often uncomfortable at night.  Veteran was working long hours at Century Link to avoid being at home as he was afraid he would yell at his son or get pulled into fighting/conflict with his wife.  He recognized that working overtime into the evening and into the night was not the best sleep hygiene practice.  The therapist suggested that he try to work less at night so that he could spend time with his son, give his wife a break from childcare, and do his physical therapy exercises for his back now that he was living in a more affordable area.  He was resistant to medication but agreed to see a psychiatrist about his insomnia since he realized this was creating some of his irritability and impatience with family.  The VA therapist believed that if the Veteran had a better night’s rest he would begin to feel better and have better relationships with his wife and son.  On mental status evaluation the Veteran was well-groomed with good hygiene and normal behavior.  His speech was normal.  His mood was “worried and feels exhausted” and his affect was congruent.  He had a normal thought process but was preoccupied with his psychosocial stressors.  He did not have any perceptual disturbance.  His memory appeared to be intact, and his attention/concentration, insight, and judgment were good.  He denied suicidal and homicidal ideation.

There was a break in his treatment, and the next VA therapy record for the Veteran is from April 2017.  He stated he first noticed PTSD symptoms after he completed service in 2011, and he felt his symptoms had “worsened recently, to the point that his wife urged him to get help.”  He had difficulty controlling his anger and was impatient with people, including his family, coworkers, and strangers.  He used to be a “very patient person before his service.”  He also reported that he sometimes forgot what he is doing while in the middle of a task or could not remember what he just did.  The Veteran reported “that he has mild TBI, so these symptoms may relate to that.”  He stated that specific triggers reminded him of his stressor(s), such as a car backfiring or people discussing their similar combat experiences.  He avoided heavily crowded places such as the grocery store on weekends.  His wife wanted to go to Disneyland with their children, but he does not enjoy it.  He endorsed feeling as though he did not have a purpose and was more uncomfortable in the civilian world than in the service.  Objectively, the Veteran’s mood was euthymic and affect was appropriate to mood.  His speech and thought content were normal, linear, and future-oriented.  There was no evidence of psychotic processes.  He did not report hallucinations.  He did not endorse suicidal or homicidal ideation.  His insight and judgment were good.  He had a DSM-5 diagnosis of PTSD.  During a suicide risk assessment, the Veteran again denied suicidal ideation.  He reported that he owned a gun but it was locked up, and he denied a history of self-harm behavior.

In June 2017, the Veteran participated in VA Mental Health Diagnostic testing.  He had a PCL-5 score of 46, and the interpretive statement noted that a score between 41 and 60 showed “severe symptoms.”  The Board will not describe the Veteran’s in-service stressful event as he is already service-connected and the event is distressing.  He endorsed that he frequently had repeated, disturbing and unwanted memories of the experience, and felt very upset and had strong physical reactions (e.g. heart pound, trouble breathing, sweating) when reminded of the experience.  He occasionally (moderately) had disturbing dreams related to the experience, and avoided memories, thoughts, and feelings related to the experience.  He endorsed having extremely strong negative believes about himself, other people, or the world in general.  He blamed himself or someone else for the stressful experience, and had strong negative feelings such as fear, anger, guilt, or shame related to the experience.  He felt moderately cut off from people and had moderate loss of interest in activities he used to enjoy.  He endorsed frequent: anger and irritable behavior, taking too many risks, being “superalert” and watchful/on guard.  He had moderate difficulty concentrating and easy startle response.  He noted only a “little bit” of trouble falling or staying asleep; however, the Board notes that other records indicated he had very little sleep.  In another self-assessment, the Veteran noted he had little interest or pleasure doing things and was feeling down or depression more than half the days in the past two weeks.  He had trouble falling or staying asleep several days and had poor concentration several days per week.  He also endorsed he had thoughts that he would be better off dead or of hurting himself in some way several days per week.  These symptoms made it “very difficult” to do his work, take care of things at home or get along with others.

In another June 2017 record the Veteran denied homicidal ideation.  he endorsed suicidal ideation throughout the “past year,” including in the past month, but denied current suicidal ideation (that day).  He had thoughts such as his “family would be better off without [him].” He denied a plan or intent to act on these thoughts, but he had an identified method (gun), and had access to a gun in his home, but was locked up and not loaded.  Veteran stated he had protective factors of “never do it because of [his] kids.”  The evaluator determined the risk was low at the time of the evaluation.”

In August 2017, the Veteran participated in a psychiatric evaluation for the Veterans Medical Research Foundation.  This was a couples’ therapy research platform.  The Veteran and his wife denied suicidal and homicidal ideation.  The Veteran was well-groomed and dressed casually and appropriately.  He was alert and cooperative.  His mood was euthymic with congruent affect.  His thought process was coherent and logical.  There were no indications of active psychosis, delusions or paranoia.  His judgement and insight were intact.  His speech was within normal limits.  This was the eighth and final session of PTSD therapy as a couple.  During prior sessions in July and August 2017 they Veteran had a similar mental status evaluation, to include ongoing denial of suicidal and homicidal ideation.

In February 2018, the Veteran’s prior coworker R.T. provided a statement based on his knowledge of the Veteran from April 2014 to July 2016 when they worked together.  Regarding his PTSD, R.T. noted that the Veteran was easily agitated, very irritable, sometimes hostile, and very hyper-vigilant.  He had no interest in talking about his personal life or family and trusted no one.  He was very negative.  He was an extremely hard worker, but there was “something that made work more difficult for him.  He would constantly lose track of what he was doing while working and had a really hard time concentrating.”  He stated that his manger had him go out to help the Veteran on calls because the Veteran would have been out on a maintenance ticket for 6 hours or more.  At one point his production numbers were so low that he had a warning of his dismissal.  The Veteran then sought a letter from the local VA stating he had a disability that affected his memory and concentration, which R.T. believes saved the Veteran’s job.  VA treatment records confirm the Veteran sought a statement regarding his TBI to provide his employer.

In February 2018, the Veteran’s wife provided a statement that, due to his PTSD, the Veteran suffered “a lot.”  He was easily agitated, very irritable, sometimes hostile, and very hypervigilant.  He had no pleasure or interest in doing family activities.  He suffered from guilt due to the incident that happened in Afghanistan.  He was “very negative” and his wife sometimes felt he had “no feelings for anyone or anything.”  She stated that whenever she could get him out of the house he would always make sure they were seated near an exit and that he had his back to a wall.  She stated that he had a hard time getting employment and keeping employment.  He had a bachelor’s degree in criminal justice and “always wanted to serve as a police officer” but he had been turned down from all the law enforcement jobs he had applied for due to psychological evaluations.

In February 2018, the Veteran was afforded a fee-basis (QTC) VA examination related to his TBI.  As his TBI symptoms that are not separately rated are combined with his PTSD rating, the pertinent information from this examination is contained in this decision.  The examiner selected that there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.  The examiner noted the Veteran had earned a bachelor’s degree.  On the MOCA, he scored a 25 out of 30 (the normal range is 26 or above).  He reported trouble with concentrating, being forgetful at work, recalling recent conversations, misplacing things, and word finding.  His judgement was mildly impaired, described as “trouble making decision at his job as a lineman for ATT.”  His social interaction was occasionally inappropriate, described as “he is irritable around others.”  He had occasional disorientation to one of the four aspects (person, time, place, situation), which was described as “he missed a point on the MOCA for the date.”  His motor activity was normal.  His visual special orientation was mildly impaired, described as “he gets lost more easily when driving, in familiar and unfamiliar areas.  He uses GPS without difficulty.”  He had three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, work, or close relationships.  In explanation, it was noted that the Veteran had dizziness with loss of balance but not falling.  He has had ED since the injury (separately service-connected).  He had one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction, or both, but did not preclude them (irritability).  He had no communication difficulties and normal consciousness. The Veteran had subjective symptoms of gait incoordination and balance, erectile dysfunction, and headaches.  Regarding the impact on his employability, the examiner noted that “given his MOCA score…his TBI symptoms [would] have a mild impact on occupational functioning.  His headaches and cognitive deficits may interfere with occupational performance.”

The fee-basis evaluator was asked to address the overlap of the Veteran’s TBI and PTSD symptoms, specifically the greater cause of his memory impairment.  The Veteran’s medical records were reviewed.  The initial PTSD examination indicated the Veteran’s symptoms were of a mild nature and caused occupational and social impairments due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  The initial PTSD exam also stated, “he reports minor problems with short-term memory, likely due to hypervigilance and hyperarousal.”  Additionally, the Initial TBI evaluation described, “memory complaints most likely from PTSD with increasing problems over time and gravity of TBIs.”  Within this initial TBI evaluation, Dr. L. found, “a complaint of mild memory loss -patient complains of increasing stm (short-term memory) problems and carries dx of PTSD MMSE 30/30, Judgment -normal, social interaction is routinely appropriate, always oriented to person, time and place, motor activity normal, visual spatial orientation is normal, subjective symptoms -headaches, vertigo; no neurobehavioral effects, able to communicate.”  The evaluator than noted that when comparing these initial evaluations to those from 2014 (PTSD) and 2018 (TBI), it is evident the Veteran’s mental health has intensified.  Additionally, the Veteran reported “further impairments on cognitive facets and scored 25/30 on the MOCA.  No additional PTSD test was included from 2018.”  Of importance, the initial head injury transpired in 2010 per the records.  An evaluation in 2012 found minimal impairments, a score of 30/30 on the MOCA and attributed the memory concerns to the mental health. Although there is a common belief mild TBI symptoms will resolve within three months, there is research that about half of individuals with a single mild TBI demonstrate long-term cognitive impairments.  “If this were the case for this veteran, then two years post-head injury, he would, most likely, have manifestations on the initial TBI evaluation as well as on the TBI evaluation eight years post-injury.”  The Veteran’s records are significant for symptoms of depression, anxiety, chronic sleep impairments and PTSD, all of which, will elicit cognitive problems/memory concerns.  “For example, a BDI2 score of 34, indicating severe depression was found in 2014 and a score of 12 on the PHQ-9 was found in June 2017.”  The Veteran’s records also had a diagnosis of insomnia in 2014.  “To answer the questions: 1) The insomnia is, at least as likely as not, due to the PTSD.  The memory loss is, at least as likely as not, in part, due to the PTSD and TBI (i.e., per initial TBI).  2) PTSD and TBI frequently have overlap in symptoms.  With consideration to this, the memory loss is, at least as likely as not, due to both.”  The evaluator then noted that the Veteran’s PTSD symptoms were: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, obsessional rituals, unprovoked irritability without violence, crying spells during his sleep, distressing dreams, prolonged psychological distress with triggers, physiological reactions to cues, avoidance, persistent negative emotional state, markedly diminished interest, detachment, inability to experience positive emotions, hypervigilance, exaggerated startle response, sleep disturbances.  The examiner then noted that based on the 2014 evaluation and his treatment records, the Veteran’s “mental health/associated symptoms appear to be the primary contributors to the veteran’s social and occupational impairments.”

During his October 2018 Board hearing, the Veteran testified that he suffered a “great deal” from his PTSD, including symptoms such as: “depression, anxiety, flashbacks, inability to concentrate.”  Regarding his TBI, the Veteran felt that his symptoms were “memory and concentration problems.”  He felt he would lose track of what he was doing and he had instances where he could not remember where he was (on locations for work).  He described the incidents that resulted in his TBI.  He stated that it was hard for him to “go about his daily life,” and that he is the only income in his household with four kids and a wife.  Regarding his PTSD, the Veteran stated that he did not have any friends, but had coworkers, and he would talk to his supervisor.  He stated he did couples therapy with his wife through VA, as related to his PTSD.  He felt the couples therapy went well and was educational for his wife as related to his PTSD.  Despite this, he noted the relationship was rocky and they discussed divorce in the past as he had “pretty bad anger problems” that he would “take out on [his wife] and the kids.”  But he was seeking treatment.  His four children were quite young, and he felt that he was “pretty hard on them” and had “high expectations” considering they were “so young.”  He denied social interactions, church, shopping, etc.  He reported he has had both suicidal and homicidal thoughts.  He was unsure how to classify panic attacks, and so was unsure if he had suffered from any but he stated that he did have anxiety.  He also stated he did not sleep well, estimating 45 minutes per night.  The Board notes it is unclear from the testimony if he meant that he only slept for 45 minutes per night or only slept in increments of 45 minutes per night.  When discussing his ability to work, the Veteran noted that his employer provided him with a number of accommodations due to his disabilities.  He worked in a sheltered environment where he was isolated from employees and staff.  He did not work with the public, and he was generally by himself or with one other guy.  He noted he had trouble with memory and concentration, and so his manager suggested he take a notepad to fill out what he was to do before he started working, to help keep him on track.  

Although the treatment records and examinations indicate that the Veteran’s PTSD has worsened in the 7 years between his separation from service (2011) and his most recent treatment records (2018), the Board will provide the Veteran the greatest benefit and finds that his symptoms more nearly approximated a 70 percent rating throughout the period on appeal.  This provides an increased 70 percent rating for the period prior to January 14, 2014.  The Veteran did not report suicidal ideation until 2017, when he indicated it had been ongoing for the past year.  However, he has had occupational and social impairment with deficiencies in work, school, in family relations, judgement (irritability), and mood.  He has had symptoms of spatial disorientation, depression, anxiety, significant irritability, impaired judgment (anger towards and “high expectations” of very young children), impairment of short-term memory, difficulty with concentration, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  Overall, his symptoms fall between the 50 percent and 70 percent rating criteria, and the Board will provide the greater rating for the entire period on appeal.  Although the Veteran is always adequately groomed, has normal speech, has not reported any obsessional rituals, and has been able to maintain a relationship with his wife, it is clear that he has severe PTSD symptoms.  Indeed, it seems that the Veteran has been rather stoic in dealing with his PTSD symptoms and has reported that he attempted to work long hours to avoid conflicts with his family.  This was present prior to January 14, 2014.

A rating in excess of 70 percent for PTSD is not warranted.  The Veteran has not shown symptoms such as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, memory loss for names of close relatives, own occupation or own name.  He has reported suicidal ideation, and thoughts of passive death (that his family would be better off without him) but has denied a plan and been considered a “low” likelihood of suicide.  As such, it does not appear that the Veteran is a persistent danger of hurting himself or others.  He has been noted to be insightful of his own mental health, and has been able to work, stay married, and raise children, although with a great deal of effort on his part to deal with the impact of his mental health.  The Veteran has not reached total occupational and social impairment.  As such, the Board finds that entitlement to a 100 percent rating for PTSD is not warranted during the entire period on appeal.

TBI 

As noted above, the Board did not reinstate the separate rating for TBI.  A separate disability rating for the Veteran’s TBI is not warranted as the primary symptoms exhibited cannot be separated from his symptoms of PTSD and rating based on the PTSD criteria results in a higher rating.  See 38 C.F.R. § 38 C.F.R. § 4.124a, Diagnostic Code 8045; 38 C.F.R. § 4.130, Diagnostic Code 9411.  

Under DC 8045, there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation.  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.  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 should be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 

Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction.  Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”  However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. 

Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder.  When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 

Evaluate physical (including neurological) dysfunction under the most appropriate diagnostic code.  Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 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. 

Consider the 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. 

Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of a 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, and 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 evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” 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.  For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 

The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” provides the following evaluations: 

Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment.  Based on this, the Veteran’s 2018 MOCA testing showing mild memory impairment (25/30) would result in a Level 2. 

Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities.  Based on the 2018 TBI evaluation, the Veteran had mildly impaired judgment (irritability) and a Level 1. 

Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time.  According to the 2018 TBI evaluation, the Veteran was occasionally inappropriate due to irritability, a Level 1.  

Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation.  Again, according to the 2018 TBI evaluation, the Veteran was occasionally disoriented in one of the four aspects as he missed the date on the MOCA test, a Level 1. 

Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. 

Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment.  The 2018 TBI evaluation noted a mild impairment and able to use GPS effectively, a Level 1. 

Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days.  The Veteran is separately service connected for tinnitus, headaches, erectile dysfunction, and PTSD.  The Board will separately service connect vertigo in this decision. 

Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction.  Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability.  Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others.  The Veteran’s symptoms of irritability and moodiness are addressed in his PTSD rating.  Likely a Level 2.

Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time.  May rely on gestures or other alternative modes of communication.  Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs.  He has no impairment related to communication, Level 0. 

Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma.  See 38 C.F.R. § 4.124a, DC 8045.

Note (1): 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 co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, do not assign more than one evaluation based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 

Note (2): 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. 

Note (3): “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. 

Note (4): 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 Diagnostic Code 8045.

As indicated under Note (1), the Board may not assign more than one evaluation based on the same manifestations.  Here, there is overlap of the Veteran’s PTSD and TBI, including his memory impairment, impaired judgement, and spatial orientation.  The 2018 TBI evaluator noted that the Veteran’s memory impairment was likely due to both his PTSD and his TBI.  As such, the memory impairment and concentration cannot be clearly separated, and a single evaluation must be provided.  He must be provided a rating under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  Regarding his mild memory impairment and neurobehavioral symptoms (e.g. irritability and moodiness), under the TBI rating he would warrant a 40 percent rating.  The 70 percent rating assigned under the PTSD rating is both the higher rating, and the PTSD criteria provide a more accurate and encompassing assessment of the Veteran’s psychiatric and TBI symptoms.  As such, the 70 percent rating is applicable as to the assessment of PTSD and TBI.

3. Entitlement to a separate 10 percent rating for vertigo due to TBI from September 1, 2011

During the October 2018 Board hearing, the Veteran and his attorney argued for a separate rating for his vertigo.  He stated he suffered from two to three bouts of vertigo per month.  When he would bend over or crouch for a certain period of time, or if he is lying in bed, he will feel like the Earth is spinning around him.  He noted this happened two to three times per month.  He stated he will have to sit down and try to “recompose his bearings.”  The incidents would usually last a couple minutes but up to 20 minutes.  His earliest bought of vertigo was when he returned from deployment in July 2011.  He first noticed it in “greater detail in October 2011.”  The Veteran noted that he also has a TBI recognized by VA and that doctors had noted that the possible cause of the vertigo is his TBI.

As noted above, under DC 8045 (TBI), physical (including neurological) dysfunctions should be evaluated under the appropriate diagnostic code.  Each condition should be evaluated separately as long as the same signs and symptoms were not used to support more than one evaluation.  

The Veteran his competent to report his bouts of vertigo and their onset in service following his TBI.  The Veteran has also been credible in his reports and statements to VA.  As such, the Board finds that a separate rating for vertigo is warranted. 

In January 2012, the Veteran was afforded a VA ear examination.  He was diagnosed with vertigo.  He reported dizziness since a TBI, which he described as imbalance after lying down for a while, a “feeling like being heavy-headed.”  He was noted to have hearing impairment with attacks of vertigo and cerebellar gait and tinnitus.  He had staggering more than once per week, lasting less than one hour.  On evaluation, his gait was normal, and his Romberg test was normal/negative.  The Dix Hallpike test for vertigo was abnormal with symptoms equal in both directions without nystagmus.

During the 2018 examination, the Veteran was noted to have dizziness with loss of balance but not falling.

Diagnostic Code 6204, for peripheral vestibular disorders, provides a 10 percent rating for occasional dizziness, and a 30 percent rating for dizziness and occasional staggering. 

The Board will provide the Veteran the greater benefit and finds that his vertigo results in dizziness with occasional staggering.  He is entitled to a separate 30 percent rating. 

4. Entitlement to increased staged ratings for migraines

The Veteran is currently in receipt of a noncompensable rating for migraines prior to February 7, 2018, and a 50 percent rating thereafter.  During his October 2018 Board hearing, the Veteran and his attorney indicated that he was seeking an “earlier effective date” for the grant of the 50 percent rating.  As the initial rating was appealed as an increased rating claim, the claim has proceeded as for increased staged ratings.  The Veteran and his attorney did not argue entitlement to an extraschedular rating for his migraines after February 7, 2018 and indicated that they were satisfied with the 50 percent rating (by requesting that it be provided from an earlier date, only).

The Veteran’s migraine headaches are rated under the provisions of 38 C.F.R. § 4.124a, DC 8100, which provides a 10 percent rating for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. 

A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. 

A maximum 50 percent rating is warranted for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 

The rating criteria do not define “prostrating.”  By way of reference, the Board notes that 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.”  A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.”

In January 2012 the Veteran was afforded a VA General Medical examination, which included a headache evaluation.  The Veteran reported headaches since service in Afghanistan.  He “gets a sensation of pain directly behind his nose or the right behind his right eye.  Sometimes it is a throbbing pain that is slower than or the same as his heartbeat.  Sometimes it is a sharp pain.”  The pain lasts for one hour.  He did not take medication for his headaches.  His headaches were not as severe as they were in Afghanistan.  He did not have other migraine symptoms such as sensitivity to light, nausea, ect.  The examiner selected that the Veteran did not have characteristic prostrating attacks of migraine headache pain.  Because the examiner selected that the Veteran did not have characteristic prostrating attacks of migraine headache pain, he did not select the frequency at which the Veteran’s headaches occurred (e.g. once per month). He was noted to have been experiencing “migraine variant headache since the second significant blast injury in December 2010.”  

The Veteran was afforded a second VA headache evaluation in January 2012.  His headaches were “bitemporal, daily, sharp, and lasted for most of the day.”  He had headache pain with sensitivity to light, which lasted less than one day and occurred on both sides of the head.  The examiner marked that the Veteran did not have migraine or non-migraine headaches that resulted in characteristic prostrating attacks.  The examiner remarked that a different physician had diagnosed these headaches as migraines.  The examiner felt the headaches were “daily only with slight photophobia and seemed more consistent with tension-type headaches.”

The Veteran’s VA treatment records did not include complaints or treatment related to his headaches.  The Veteran has provided statements that he is against “pills” or any kind of pain medication, which may explain why he has not sought treatment for his migraines/headaches.

In February 2018, a former coworker of the Veteran, R.T., provided a statement related to his headaches.  R.T. worked with the Veteran from April 2014 to July 2016.  He stated that he Veteran had headaches every day and would complain about them two to three times per day, and they made him irritable.  He also had migraines (presumably worse headaches) two to three times per week.  He would complain of dizziness, lightheadedness, and nausea.  He would also complain about how bright it was and sometimes would go to the work truck and block the windows so he could lie down and rest for an hour or two before he would start to feel good enough to continue working.  

Additionally, in February 2018, the Veteran’s wife provided a similar statement that the Veteran would “complain about his headache at least two to three times a day.”  He had migraines two to three times per week, with dizziness, lightheadedness and nausea.  He would become “highly sensitive to light and have to go to his room and lay down and rest.”  She also had to take the kids out of the house when he was suffering a headache that made him sensitive to noise.

On February 7, 2018, the Veteran was afforded a fee-basis (QTC) VA headache examination.  He reported migraines, with onset in 2010 with daily headaches after his first exposure to an IED blast.  He later started getting migraines after an RPG blew up the wall he was standing behind.  He would get migraines about once every two weeks.  However, the condition had worsened, and he now has migraines once or twice a week.  He stated he was “really sensitive to light” and nauseated during migraines.   He also had constant headaches “everyday.”  The examination included the Veteran’s report of constant head pain, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision.  His head pain generally lasted more than 2 days and occurred on both sides of his head.  The examiner selected that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability.  The impact on his employment was listed as “head pain and trouble concentrating.  Must take sick days and leave work early.”  The examiner provided an additional statement that the “frequency of his prostrating headaches was more than once per month productive of economic inadaptability.”

A February 2018 TBI evaluation included the Veteran’s report of daily headaches that were “more or less constant,” with migraines two to three times per week.  The migraines were at the right part of the forehead and behind the right eye.  “A squeezing pressure or sharp pain.”  At their worst, their intensity was 9 out of 10.  They were prostrating once or twice per week.  During headaches, he had nausea and hypersensitivity to light and noise.  He did not take medication.  Their severity was increasing.

In October 2018, the Veteran testified at a Board hearing that he had migraine headaches two to three times per week.  He would have them at work and at home.  If he is at work, he has to go to his truck and block out all sun, close his eyes, and relax until the migraine “weasels its way down to a headache.”  It is harder at home because he has children, but he would try to go to his room and block out all the light.  Sunlight was horrible for his headaches.  As noted above, the Veteran’s attorney noted that a March 2018 rating decision awarded an additional grant for his migraine headaches (of 50 percent), but “only went back to February 7 of this year” and the attorney argued that the rating should go back “earlier.”  The VLJ informed the attorney that the Board would address the increased rating claim as on appeal from the initial effective date of September 1, 2011.

To condense the above, in 2012 the Veteran reported headache pain that lasted for one hour, but the examination did not include how frequently the headaches occurred.  A second 2012 examination noted he had headaches that were “bitemporal, daily, sharp, and lasted for most of the day” but that did not result in characteristic prostrating attacks.  There is a gap in medical records from 2012 to 2018, but the Veteran’s coworker (from 2014 to 2016) described daily headaches with migraines two to three times per week which would require that the Veteran retreat from sunlight and rest for up to 2 hours.  In 2018, the Veteran and his wife additionally described migraines which occurred two to three times per week and required retreat from light and sound, as well as rest.  A February 2018 QTC examination noted that the Veteran’s migraines used to occur twice per month but had worsened and now occurred twice per week.  The February 2018 examiner noted that the migraines were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

The Veteran’s migraine headache symptoms prior to February 7, 2018 fall between a 30 percent and 50 percent rating.  The evidence suggests headaches twice per month, but without a medical opinion related to if the headaches were characteristic prostrating headaches or completely prostrating and prolonged attacks.  Resolving reasonable doubt in the Veteran’s favor, his migraine headaches have been very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability during the entire period on appeal.  Based on the Veteran’s coworker’s statement he has suffered at least weekly migraines since approximately 2014.  The 2012 VA examination indicated daily headaches.  The Veteran has reported that he does not take pain medication, so the likelihood that the migraines continue and produce severe symptoms is higher without the use of medication.  A 50 percent rating will be provided for the entire period on appeal.

Regarding extraschedular consideration, the Board finds that it is not warranted in this case.  The Veteran’s headaches are manifested by signs and symptoms of pain, nausea, hypersensitivity to light and sound, and “prostrating attacks” which impair his day-to-day functioning.  These signs and symptoms, and their resulting functional impairments, are contemplated by the rating schedule.  Diagnostic Code 8100 provides disability ratings contemplated along a broad and non-exclusive continuum expressed with generalized terms, such as “prostrating attacks” and “severe economic inadaptability.”  Therefore, the rating schedule was purposely designed to compensate for all symptoms of the disability, and the complete and comprehensive signs and symptoms of the Veteran’s headaches.

Although the Veteran continued the increased rating appeal after the staged 50 percent rating was assigned, neither he nor his attorney have argued that he has any signs or symptoms not contemplated by the rating schedule.  Indeed, his attorney indicated he was content with the 50 percent rating but wished to have it assigned from an earlier date, which is provided in this decision.  Accordingly, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture.  In summary, there is nothing exceptional or unusual about the Veteran’s headaches because the rating criteria reasonably describe his disability level and symptomatology.  Thun v. Peake, 22 Vet App 111 (2008).

5. Entitlement to total disability based on individual unemployability (TDIU)

Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Marginal employment is not considered substantially gainful employment.  38 C.F.R. §§ 3.340, 4.16(a). 

Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop.  38 C.F.R. § 4.16 (a).  Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment.  Age is not a factor.  38 C.F.R. § 4.16 (b).

Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent.  38 C.F.R. § 4.16 (a).  For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident may be considered as one disability.  38 C.F.R. § 4.16(a).

Marginal employment is deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

As such, work in a “protected environment” will also be considered marginal and is not determined on the basis of salary.  Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (interpreting the provisions of 38 C.F.R. § 4.16 (a)). In Cantrell the Court held that the term “protected environment” was ambiguous and noted that VA had declined to define the term.  The Court went on to say that it could not uphold the Board’s reasons and bases for saying full time employment as a park ranger was not sheltered employment absent a definition of that term adopted by VA.  In that case, there were reports that accommodations had been made in the Veteran’s employment to account for his disabilities.

Here, the Veteran meets the schedular criteria for entitlement to TDIU.  The record also indicates that he has either been a full-time student or gainfully employed full-time during the period on appeal.  During the 2012 examinations the Veteran was noted to be doing “well” in school, earning his bachelor’s degree in Criminal Justice Administration.  A January 2014 PTSD examination included that the Veteran completed his degree in December 2013 and had been working for AT&T for the past six months, which would indicate he was in school and working at the same time.  A January 2014 back examination included that the Veteran was working full-time as a cable splicer for AT&T since May 2013.  He was also in the Army Reserves from September 2007 to at least 2016.  A September 2014 VA treatment record indicated that the Veteran had been working as a network technician for Century Link since April 2014.  The Veteran’s coworker, R.T., indicated he worked with the Veteran at Century Link from April 2014 to July 2016.  In December 2014, during a therapy session, the Veteran admitted to working many overtime hours to remain away from his family and avoid conflict.  In April 2016, the Veteran continued to be in the Reserves as he indicated back pain following a ruck march.  An April 2017 VA treatment record indicated that the Veteran had “moved back from Arizona and [was] doing work in the telephone industry.”  The Veteran continued to be employed as of his October 2018 Board hearing, but he described many accommodations his manager made for his disabilities.  He noted that if it were not for the accommodations and the specifics of his employment (working alone, time off for appointments, breaks for pain, etc.) that he would not be employable. 

In January 2018, the Veteran submitted a TDIU claim form that was signed in October 2014.  The form noted that the Veteran’s PTSD, TBI, and back disabilities prevented him from obtaining and maintaining substantially gainful employment.  In the section related to his prior employment, the Veteran only listed his Army service, which ended in August 2011.  He indicated that this was the last time he worked full-time.  Given the above, the TDIU claim form is not a credible assertion of his full work history.

During the Board hearing, the Veteran stated that he was the sole provider for his family and did not indicate that his employment resulted in pay below the poverty level.  However, the Veteran argued that he is only employed due to his very accommodating manager and employer, and that he would otherwise be unemployable.  In March 2018, his current employer provided a statement that the Veteran had been employed with AT&T since June 2015, and that the provided accommodations for his PTSD and physical disabilities. 

The Board has reviewed the Veteran’s combined schedular ratings under 38 C.F.R. § 4.25 and notes that with the increased and separate ratings provided by this decision the Veteran now has a combined schedular 100 percent rating from September 1, 2011.  Although his right lower extremity neuropathy issue was severed effective June 1, 2015, his left ankle disability was increased to 10 percent from January 30, 2014.  Additionally, although is separate 10 percent rating for TBI was discontinued effective February 15, 2018, he received an increased 20 percent rating for his left lower extremity neuropathy effective December 2015.  As such, the Veteran now has a schedular 100 percent rating for the entire period on appeal (from September 1, 2011).

In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court, held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate)); see 38 U.S.C. § 1114 (s).

Although the Veteran has been employed full-time throughout the appeal period, it does appear that his employment from at least June 2015 has been in a protected environment, which meets the standards of marginal employment.  However, the Veteran also now has a schedular 100 percent rating for the period on appeal.  To receive additional SMC benefits, the Board would have to find that his protected environment/marginal employment is due to one (“single”) disability.  The Board does not find that his protected environment/marginal employment is the result of a single disability.  Both the Veteran and his employer have noted that the accommodations provided for the Veteran are based on both his psychiatric and physical disabilities.  He was permitted to take time off for appointments for all of his disabilities, he is permitted to work alone or with one other coworker due ot his PTSD symptoms, and he has been provided accommodations for his back pain related to manual tasks associated with his employment.  As such, the Board finds that additional SMC benefits based on a TDIU for a single disability is not warranted. 

REASONS FOR REMAND

1. Entitlement to a rating in excess of 10 percent for a thoracolumbar spine disability is remanded.

The Veteran argues that his thoracolumbar spine pain is not reflected by the 10 percent rating currently assigned for his disability.  

A November 2014 physical therapy record for low back pain included that the Veteran had an antalgic gait pattern with decreased stance time no his left lower extremity, decreased arm swing, and decreased trunk rotation.  The Veteran reported that he was unable to get out of bet “at times and felt weakness with activities of daily living, such as donning shoes and socks, and bending, kneeling and squatting to pick up objects from low surfaces.”

The Veteran is currently in receipt of a separate rating/service connection for a left lower extremity neuropathy associated with his thoracolumbar spine disability.  In November 2014, a VA physical therapy note included that the Veteran had bilateral radicular symptoms, with his left greater than his right.  However, a 2018 fee-basis VA spine examination did not diagnose right lower extremity radiculopathy.  

In December 2015, the Veteran reported increased radiating low back pain following a ruck march with the Army Reserves several weeks ago.  He noted he was able to complete the march, but the following day in had increased low back pani that radiated to his left foot.  In April 2016, the Veteran requested a physical profile for the Army Reserves due to ongoing low back pain.  Recently, after a month of training, he had “increased low back pain with radiation to his left leg on a daily basis, and sometimes to his right leg.”  The Veteran reported the use of Ibuprofen only when he was “unable to get out of bed.”  He was using a back brace when lifting objects at work.  

The Veteran had updated x-rays in May 2016, which did not show significant abnormality.  He was also to have been provided a follow-up MRI of the spine.  The record contains a VA letter informing the Veteran of preparation for an MRI, but if an MRI was performed, the results are not in the claims file.  On remand, an attempt should be made to obtain the MRI, if it exists.

In July 2017, the Veteran again reported to a VA physical therapy that his back “gets shifted sometimes and [he could not] get out of bed.”

In February 2018, the Veteran was afforded a VA fee-basis spine examination.  The examination included finding that the Veteran had forward flexion to 70 degrees, and a combined range of motion of 185 degrees.  He was able to perform three repetitions.  There was no change in his range of motion after repeat range of motion testing.  He was noted to have objective pain with flexion and extension, as well as pain with weightbearing; however, the examination did not include at what degree objective pain was noted.  The examiner did not find that the Veteran had any right lower extremity radicular symptoms, although prior treatment records indicated that the Veteran “sometimes” had right radicular symptoms.  Additionally, the examiner noted that the Veteran had intervertebral disc syndrome (IVDS), but that he had not had any episodes of acute signs and symptoms due to IVDS that required bedrest prescribed by a physician and treatment by a physician in the past 12 months.  Although the record does not show that a physician had prescribed bedrest, the Veteran has reported episodes of being “unable to get out of bed” that were not addressed in the examination.  The examiner found that the Veteran did not have muscle spasms; however, during his Board hearing, the Veteran stated that he did suffer from “mid-back” muscle spasms.  Given the above, the Veteran should be scheduled for an updated VA spine examination that addresses whether he has right lower extremity radiculopathy, episodes of back pain requiring bedrest during the period on appeal (from 2011 to the present), and where the Veteran is able to describe his “mid-back” muscle spasms to the examiner.

2. Entitlement to an initial rating in excess of 10 percent for left ankle instability is remanded.

During his October 2018 Board hearing, the Veteran testified that his left ankle is unstable, and in conjunction with his left lower extremity radiculopathy his left leg will “give out” on him and he had frequent falls.  He also reported once to twice per week he had sharp shooting pain through the left side of his ankle that made it unbearable to put any weight on that leg.  He also had instances where he went to step and “it’s taken [his] ankle out from [him].”

In February 2018, the Veteran was afforded a fee-basis VA ankle examination where he was assessed with left lateral collateral ligament strain and left ankle instability.  However, stability testing was not performed in this examination, and under the section for “Joint Instability” the examiner selected “no” for if “ankle stability or dislocation was suspected.”  Additionally, even though the Veteran reported flare-ups and functional loss with repeated use over time, and the examiner noted that the examination was consistent with the Veteran’s reports, the examiner left the section related to describing any functional loss in terms of range of motion blank.  As such, on remand the Veteran must be afforded an additional adequate VA examination for his left ankle disability.

3. Entitlement to increased staged ratings for left lower extremity nerve disability is remanded.

In January 2012, the Veteran was afforded a peripheral neuropathy evaluation as part of a general medical examination.  He was diagnosed with compressive neuropathy of the left femoral nerves at the groin and compressive neuropathy of the peroneal nerve at the left knee.  He was noted to have mild incomplete paralysis of the left external popliteal (common peroneal) nerve and mild incomplete paralysis of the left musculocutaneous (superficial peroneal) nerve and mild incomplete paralysis of the anterior crural (femoral) nerve, and mild incomplete paralysis of the left internal saphenous nerve, and moderate incomplete paralysis of the external cutaneous nerve of the thigh.  The Veteran was noted to have motor weakness of varying (positional) degrees to hip, knee, and ankle on the left.  The remarks included that the physical exam was “unequivocal” and that “nerve studies for compressive neuropathies are very unreliable---basically useless---only good with interpreter and listener understanding all the nuances.”

A second January 2012 peripheral nerve examination included a diagnosis of left peroneal neuropathy.  The examiner selected that the Veteran had mild incomplete paralysis of the left anterior tibial (deep peroneal) nerve.  The examiner noted that a February 2014 EMG showed a normal right lower extremity evaluation and left peroneal neuropathy at the peroneal head on the left.

A January 2014 spine examination included that the Veteran did not have radicular pain or other signs and symptoms of radiculopathy.

In February 2014, the Veteran was afforded sensory and motor nerve conduction tests and an EMG, with the impression of left peroneal neuropathy at the fibular head, without denervation. 

In December 2015, the Veteran reported increased radiating low back pain described as “constant mild left-sided low back pain which radiated around to the upper aspect of the left thigh.”  He noted a recent flare-up of sciatic pain several weeks ago on a ruck march with the Reserves.  The following day he developed increased low back pain with radiation to the left foot and toes.  Three days ago, the left leg gave out and he landed on his hands and knees.  He denied leg weakness, bowel/bladder incontinence, and saddle anesthesias.  He was assessed with chronic low back pain and left lower extremity radiculopathy.

In April 2016, the Veteran required a physical profile for the Army Reserves due to low back pain.  He had just completed a month of training with increased back pain with radiation to the left leg on a daily basis.  He also reported that his left leg will give out on occasion. 

In February 2018, the Veteran was afforded a fee-basis VA spine examination.  The examiner found that the Veteran had moderate incomplete paralysis of the left sciatic nerve. 

Also, in February 2018, the Veteran was afforded a fee-basis VA peripheral nerve examination.  The Veteran reported that his symptoms had worsened, and now whenever he sits for a while his low back pain shoots down the back of his leg to his calf and sometimes he gets numbness in his left foot.  The examiner noted that the Veteran’s diagnosis of femoral neuropathy of the left lower extremity was “actually left sciatic radiculopathy” associated with his thoracolumbar spine strain.

On remand, the Veteran should be afforded an additional examination which addresses which nerve or nerves are impacting the Veteran’s left lower extremity.  The 2012 and 2018 examiners have provided differing opinions on which nerves are involved, and the last nerve conduction/EMG was in 2014.  Additionally, the examiner should address the Veteran’s complaints of his left leg giving out and indicate if this is a result of his neuropathy, his left ankle disability, or is related to his vertigo. 

The matters are REMANDED for the following action:

1. If the Veteran has undergone an MRI of his spine (as was ordered by VA in May 2016), then the RO should attempt to obtain the findings and associate them with the claims file.

2. Schedule the Veteran for a VA spine examination to determine the current severity of the Veteran’s thoracolumbar spine disability.  The examiner should elicit a history from the Veteran which includes statements on flare-ups, to include episodes where he is “unable” to get out of bed, and episodes of muscle spasm or locking in his “mid-back.”  

The examiner must also address whether the Veteran has right lower extremity radiculopathy symptoms, as there is conflicting medical evidence related to this issue. 

When objective painful motion is noted, the examiner should indicate at what degree the objective painful motion began. 

To the extent possible, the examiner is also asked to provide the ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the Veteran’s left and right knees. If the examiner is unable to so opine, he or she should clearly explain why that is so.

3. Schedule the Veteran for a VA ankle examination to determine the current severity of his left ankle instability.  The examination must include instability testing, as well as joint testing.  

When objective painful motion is noted, the examiner should indicate at what degree the objective painful motion began.

To the extent possible, the examiner is also asked to provide the ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the Veteran’s left and right knees.  If the examiner is unable to so opine, he or she should clearly explain why that is so.

4. Schedule the Veteran for a VA examination to determine the current severity of the Veteran’s left leg neuropathy/radiculopathy.  

The examination must address which nerve or nerves are impacting the Veteran’s left lower extremity.  The 2012 and 2018 examiners have provided differing opinions on which nerves are involved.  The examiner should correlate or resolve the differing opinions related to the nerves involved in the Veteran’s left lower extremity neuropathy symptoms.

Additionally, the examiner should address the Veteran’s complaints of his left leg giving out and indicate if this is a result of his neuropathy/radiculopathy, his left ankle disability, his vertigo, or another disability/combination of disabilities.

(Continued on the next page)

 

5. After completing the development requested above, readjudicate the Veteran’s claims.  If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.  The case should then be returned to the Board, if otherwise in order.

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	M.H. Stubbs, Counsel