Citation Nr: 20003783 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 15-14 664 DATE: January 16, 2020 ORDER Entitlement to an initial rating of 40 percent for residuals of a traumatic brain injury (TBI) is granted. REMANDED ISSUES The claim of entitlement to an initial rating higher than 10 percent for hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Residuals of TBI is manifested by symptoms producing no greater than level 2 impairment in at least one facet of cognitive impairment. CONCLUSIONS OF LAW The criteria for an initial rating of 40 percent for residuals of a TBI have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1957 to January 1961. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating higher than 10 percent for residuals of a TBI The Veteran appeals the denial of an initial rating higher than 10 percent for residuals of a traumatic brain injury. The Veteran’s residuals of a TBI is rated under Diagnostic Code 8045. Under these criteria, there are three main areas of dysfunction listed that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 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. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” (Hereinafter “table.”) Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. The rater is instructed to evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table. However, the rater is to 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 table. Further, the rater is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms should be evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a traumatic brain injury Not Otherwise Classified.” Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, such should be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Additionally, the rater is to consider the need for special monthly compensation (SMC) for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table 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, 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. Note (1): There may be an overlap of manifestations of conditions evaluated under the table with manifestations of a comorbid 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 an injury classification 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. After review of the record, to include the VA examinations, outpatient treatment records, lay statements and private treatment records/opinions, the Board finds in favor of a rating of 40 percent for TBI under DC 8045. To that end, the first facet for consideration is memory, attention, concentration and executive functions. A level of severity of “2” has been assigned for the memory, attention, concentration, and executive functions facet. When evaluated in October 2009 and October 2013 there was objective evidence on testing of mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment. The November 2018 VA examiner, however, found that there was at most a complaint of mild memory loss (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. Although the Veteran’s memory, attention, concentration and executive functions may have varied in severity during this appeal, there is evidence during this appeal consistent with the criteria for a level “2” impairment, i.e. objective evidence on testing of mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment. Significantly, the October 2009 and October 2013 examinations both found that there was objective evidence on testing of mild impairment, and recent outpatient treatments show that there is mild memory impairment. As the Veteran’s memory, attention, concentration and executive functions have been shown to be at most mild during this appeal and there is no showing of moderate or severe impairment of memory, attention, concentration and executive functions during the pendency of the appeal, a level of impairment of “2” is warranted but no higher. A level of severity of “1” has been assigned for the judgment facet, indicating that an examiner has found evidence of mildly impaired judgment, including symptoms such as impairment for complex or unfamiliar decisions, occasional inability to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. To that end, the October 2009 and October 2013 VA examiners found that the Veteran’s judgment was mildly impaired. During the October 2009 examination, it was noted that on objective testing the Veteran generated inadequate responses on 50 percent of the hypothetical situations presented. As the Veteran’s judgment has been shown to be at most mildly impaired during this appeal and there is no showing of moderate or severe impairment of judgment during the pendency of the appeal, a level of impairment greater than “1” is not warranted. A level of severity of “0” has been assigned for the social interaction facet, indicating that the examiners have found evidence of appropriate social interaction. A higher level of severity of “1” is not warranted unless social interaction is occasionally inappropriate. As the Veteran’s behavior has been considered appropriate during the pendency of the appeal, a higher level of severity of “1” for social interaction is not warranted. A level of severity of “0” has been assigned for the orientation facet, indicating that the examiners found evidence that the Veteran was oriented to person, time, place, and situation. He was evaluated as alerted and oriented during clinical evaluations. A higher level of severity of “1” is not warranted unless there is evidence such as occasional disorientation to one of the four aspects (person, time, place, situation) of orientation. There is no finding of impairment of orientation during the pendency of the appeal. A level of severity of “2” has been assigned for the motor activity (with intact motor and sensory system) facet indicating there is evidence that motor activity is at most mildly decreased. To that end, the October 2009 VA examiner found that mild impairment was demonstrated in fine motor ability in which speed of peg placement was required. The October 2013 VA examiner found that motor activity was normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). When evaluated in November 2018, however, motor activity was shown to be normal. Although the Veteran’s motor activity may have varied in severity during this appeal, there is evidence during this appeal consistent with the criteria for a level “2” impairment. As the Veteran’s motor activity has been shown to be at most mildly decreased during this appeal and there is no showing of moderate or severe decreased motor activity due apraxia during the pendency of the appeal, a level of impairment greater than “2” is not warranted. A level of severity of “1” has been assigned for the visual spatial orientation facet, indicating that an examiner has found that there is evidence of mild impairment, including occasionally getting lost in unfamiliar surroundings, having difficulty reading maps or following directions, and being unable to use assistive devices such as GPS. To that end, the October 2009 VA examiner stated that orienting from one point to another was a big problem for the Veteran and that he regularly gets lost when going to new places in particular. The October 2013 VA examiner also found there was mild impairment in this facet. Dr. R essentially reiterated the same in his July 2015 evaluation and opinion. As the Veteran’s visual spatial orientation has been shown to be at most mild during this appeal and there is no showing of moderate or severe impairment of visual spatial orientation during the pendency of the appeal, a level of impairment greater than “1” is not warranted. A level of severity of “1” is assigned for subjective symptoms facet. To that end, the October 2009 VA examiner found there was evidence of three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. Specifically, the Veteran was noted to have a loss of balance, blurry vision, low energy, sensitivity to light, sensitivity to sound and ringing in the ear. The October 2013 VA examination disclosed that the Veteran had no subjective symptoms. The November 2018 VA examiner, however, found that the Veteran had subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. During this appeal, it has been shown that the Veteran has three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships thereby warranting a level of severity of “1.” There is no showing, however, of moderate interference during the pendency of the appeal thereby warranting a level higher than “1.” A level of severity of “1” has been assigned for the neurobehavioral effects facet. In this regard, the October 2009 VA examination disclosed that the Veteran had one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction or both but do not preclude them. The November 2018 VA examination, however, disclosed there were no neurobehavioral effects and the October 2013 VA examination disclosed the Veteran had one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. As it has been shown during this appeal that the Veteran has one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction or both but do not preclude them, a level of severity of “1” is warranted. There is no showing, however, of frequent interference or higher with workplace interaction, social interaction or both during the pendency of the appeal thereby warranting a higher level. A level of severity of “1” has been assigned for the communication facet, indicating that there is evidence of comprehension or expression, or both, of either spoken language or written language that is only occasionally impaired, and that the veteran can communicate complex ideas. In this regard, during the October 2009 VA examination the Veteran stated that he tends to “go off topic” which was noticeable to the examiner during the evaluation. Although the October 2013 and November 2018 VA examiners found that the Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language, there is evidence showing that a level of severity of “1” was met during this appeal. A review of the record, however, is against a showing of an inability to communicate at any time during this appeal thereby warranting a higher level of severity. Finally, for the entire period on appeal, the evidence does not indicate that the Veteran experienced a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. Therefore, he does not meet a total disability rating due to his state of consciousness. The evidence summarized above supports a rating of 40 percent but no higher for the Veteran’s TBI residuals under Diagnostic Code 8045. To that end, a level “2” impairment has been assigned for the memory, attention, concentration and executive functions facet, and the motor activity facet. Using the table to evaluate cognitive impairment, the Veteran’s residuals have not been rated as any more than at a level 2 impairment at any point during the appeal. Using the table to evaluate subjective symptoms, the Veteran’s TBI residuals have not been characterized as any more severe than a level “2.” An assigned value of “2” yields a 40 evaluation, and only one evaluation may be assigned for all of the applicable facets under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Accordingly, the claim is granted. For entire claims period, the Board has also considered Diagnostic Code 8045’s instruction to consider whether the Veteran is entitled to SMC. The Board notes that SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). However, the record does not show that the Veteran has a single service-connected disability that is rated as 100 percent disabling. The record also fails to reflect that the Veteran is permanently housebound by reason of any of his service-connected disabilities. The Board has also considered whether the Veteran is entitled to SMC compensation under any other provision, to include 38 U.S.C. § 1114 (k), but finds that he is not. Neither the Veteran nor the record suggests the need for aid or attendance, significant sensory impairments, loss of use of an extremity, or erectile dysfunction as a result of his TBI. Accordingly, SMC is not warranted in this case. REASONS FOR REMAND Entitlement to an initial rating higher than 10 percent for hepatitis C. Entitlement to a TDIU. The Veteran appeals the denial of an initial rating higher than 10 percent for hepatitis C. When this issue was last before the Board in July 2018, it was determined that further development was needed for proper adjudication of the claim. The Veteran was afforded a VA examination in November 2018. During this examination, it was noted that the Veteran’s hepatitis was undetectable and that he did not require continuous medication for his liver condition. It was noted that the Veteran denied any incapacitating episodes. The VA examiner also found that the Veteran’s liver condition did not impact his ability to work. In July 2019, however, Dr. A stated that the Veteran still had fatigue, malaise, anorexia, vomiting, nausea and arthralgia that was intermittent, daily, near constant and debilitating. It was also stated that the Veteran had daily, near constant and debilitating diarrhea and right upper quadrant pain. Furthermore, it was noted that the Veteran has had incapacitating episodes due to his hepatitis C in the past 12 months. Dr. A expressed that he saw the Veteran regularly because of his constant and debilitating symptoms and he prescribed a “daily supine” for the rest of his constant and debilitating symptoms. He further found that the Veteran has not been able to work for years and has difficulty doing activities of daily living due to his hepatitic C. The Board finds, however, that the examinations of record are inadequate to fully address the claim. To that end, the VA examination indicates that the Veteran does not take medication for his hepatitis C. Dr. A, however, has stated that he prescribed the Veteran for his constant and debilitating symptoms. Also, while Dr. A expressed that the Veteran had intermittent, daily, near constant and debilitating symptoms, the Board notes that Dr. A’s findings of intermittent and daily symptoms are contradictory. For the reasons stated, the Board finds that another examination is warranted for proper adjudication of the claim. Furthermore, the law provides that TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Moreover, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. During the October 2013 VA examination, the VA examiner stated that it was at least as likely as not that the Veteran’s difficulties with memory, concentration and executive functions, are the result of TBIs suffered in the service and that they have had a deleterious impact on his ability to work, including as a podiatrist. In light of the Veteran’s lay statements, outpatient treatment records and the VA examinations, the Board finds that a TDIU claim is considered to have been raised by the record and thus is a component of the increased rating claim on appeal before the Board. Accordingly, the Board has jurisdiction over this issue. An opinion has not been obtained to determine what impact, if any, the Veteran’s cumulative service-connected disabilities have on his ability to maintain employment. On remand, such an opinion should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Update for the record all relevant private and VA treatment records, to include complete records from Dr. A. See Medical Statement received July 2019. 2. Schedule a VA examination to determine the current severity of the Veteran’s hepatitis C. The examiner must be provided access to the Veteran's electronic claims folder. In accordance with the latest worksheets for rating hepatitis C, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints and the nature and extent of his disability. In doing so, the examiner must address the July 2019 evaluation of Dr. A. A complete rationale for any opinions expressed must be provided 3. Schedule the Veteran for a VA examination to determine the impact his service-connected disabilities, either singly or cumulatively, have on his ability to obtain or retain employment. The examiner is to be provided access to the electronic claims file. All findings should be reported in detail and all functional impairment caused by the service-connected disorders should be detailed. A complete rationale for all opinions should be provided. (continued on the next page) 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.